Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2023-01-31 Tentative Ruling

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Case Number: 19STCV45653    Hearing Date: January 31, 2023    Dept: 34

SUBJECT:         Motion to (i) Quash Subpoena Duces Tecum Served on PMQ of Gold Health and Safety Consulting, Inc., (ii) Stay the Taking of the Deposition, and (iii) Preclude the Taking of the Deposition

Moving Party:  Defendants Anita Kovacic, BLK Properties, LLC, and Marine View Management, Inc.

Resp. Party:    Plaintiffs Nicole Abramson and Douglas Stork

Defendants’ Motion is DENIED. Both Requests for Sanctions are DENIED.

BACKGROUND:

On December 17, 2019, Plaintiffs Nicole Abramson and Douglas Stork filed their Complaint against Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC on causes of action for breach of implied warranty of habitability, negligence, and breach of contract. This case regards damages Plaintiffs allege to have suffered and continue to suffer due to the mold in their home.

On April 6, 2021, Plaintiffs filed their First Amended Complaint.

On June 8, 2021, Defendants filed their Answer to the First Amended Complaint.

On January 5, 2023, Defendants Anita Kovacic, BLK Properties, LLC, and Marine View Management, Inc. filed their Motion to (i) Quash Subpoena Duces Tecum Served on PMQ of Gold Health and Safety Consulting, Inc., (ii) Stay the Taking of the Deposition, and (iii) Preclude the Taking of the Deposition.

On January 10, 2023, the Court granted Plaintiffs’ Ex Parte Application for an order to Continue Trial Briefly Due to the Surgical Procedure of Lead Trial Counsel. The Court continued the Jury Trial scheduled for January 23, 2023 to February 27, 2023.

On January 18, 2023, Plaintiffs filed their Opposition.

On January 24, 2023, Defendants filed their Reply. 

ANALYSIS:

I.           Legal Standard

“Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).)

“Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a witness identified under Chapter 18 (commencing with Section 2034.010) on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.030.)

“As used in this chapter, discovery is considered completed on the day a response is due or on the day a deposition begins.” (Code Civ. Proc., § 2024.010.)

II.        Discussion

The question at hand is very simple: whether Plaintiffs erred by noticing the deposition of David Gold for January 5, 2023.

Defendants argue that the answer is yes, citing Code of Civil Procedure section 2024.020, subdivision (a). (Motion, p. 4:3–11.)

Plaintiffs argue that the answer is no, citing Code of Civil Procedure section 2024.030. (Opposition, p. 3:1–15.)

The Court agrees with Plaintiffs, but not for the reasons that they cite.

The crux of the Parties’ disagreement is whether Mr. Gold is an expert witness or not. If, as Plaintiffs argue, he is an expert witness, then Plaintiffs would have been able to depose him no later than 15 days before Trial; if, as Defendants argue, he is simply a person most knowledgeable, then Plaintiff would have had to depose him no later than 30 days before Trial. This is ostensibly important because Plaintiff’s noticed Mr. Gold’s deposition for January 5, 2023, which is more than 15 days but less than 30 days before the (then) Trial date of January 23, 2023.

Yet in the situation at hand, this distinction is irrelevant. It is undisputed that Plaintiffs deposed Mr. Gold on September 28, 2022. (Opposition, p. 2:10–11; Reply, Ex. 4 (deposition transcript of David Gold).) It is further undisputed that Plaintiffs did not finish the deposition and that the parties agreed to find another date to finish the deposition. (Opposition, p. 2:19–26; Reply, p. 2:19–21 and Ex. 4, p. 146:2–14.) Finally, the law is clear that whether the Parties actually complete the deposition is different from whether they legally complete the deposition. “[D]iscovery is considered completed on the day a response is due or on the day a deposition begins.” (Code Civ. Proc., § 2024.010.)

Pursuant to CCP §2024.010, Mr. Gold’s deposition was legally completed on September 28, 2022. This was well before either the 15- or 30-day deadlines. Thus, Plaintiff is entitled to actually complete the deposition prior to Trial. The Court does not reach the question of whether Mr. Gold is an expert witness or not.

The Court DENIES Defendants’ Motion.  The Court DENIES the Parties’ respective Requests for Sanctions.

III.     Conclusion

Defendants’ Motion is DENIED. Both Requests for Sanctions are DENIED.