Judge: Michelle C. Kim, Case: 20STCV16755, Date: 2023-10-24 Tentative Ruling


Case Number: 20STCV16755    Hearing Date: October 24, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

LEIGH GRODE, 

Plaintiff(s),  

vs. 

 

ELIZA LU, ET AL., 

 

Defendant(s). 

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      CASE NO: 20STCV16755 

 

[TENTATIVE] ORDER RE: MOTION TO COMPEL PLAINTIFF’S EXPERTS’ DEPOSITIONS 

 

Dept. 31 

1:30 p.m.  

October 24, 2023 

 

I. Background 

On May 1, 2020, Plaintiff Leigh Grode (“Plaintiff”) filed this action against Defendants Eliza Lu and Timothy Lu (“Defendants”) for damages arising out of a motor vehicle accident. Trial is currently set for May 6, 2024.  

Plaintiff has designated Andrew S. Morris, D.C. (“Morris”), Jan Roughan, B.S.N. (“Roughan”), Jonathan Eskenazi, M.D. (“Eskenazi”), John J. Smith, P.E. (“Smith”), and Fardad Mobin, M.D (“Mobin”) pursuant to Code of Civil Procedure section 2034.260. Defendants move to compel the depositions of these expert witnesses or alternatively, to exclude their testimony at trial. 

Any opposition was due on or before October 11, 2023. No opposition was filed.  

 

II. Motion to Compel Deposition of Designated Experts 

On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.  Except as otherwise provided, the procedures for taking oral and written depositions apply to a deposition of a listed trial expert witness.  (Code Civ. Proc., § 2034.410.) The party taking the deposition of an expert witness shall either accompany the service of the deposition notice with a tender of the expert's fee based on the anticipated length of the deposition, or tender that fee at the commencement of the deposition. (Code Civ. Proc., § 2034.450(a).) The service of a proper deposition notice accompanied by the tender of the expert witness fee is effective to require the party employing or retaining the expert to produce the expert for the deposition.  (Code Civ. Proc., § 2034.460, subd. (a).) If the party noticing the deposition fails to tender the expert’s fee under Section 2034.430, the expert shall not be deposed at that time unless the parties stipulate otherwise.  (Code Civ. Proc., § 2034.460, subd. (b).) 

On April 4, 2023, Plaintiff served her designation of expert witnesses. Defendants served their notice of the taking of Plaintiff’s expert witnesses, wherein Morris and Roughan were to be deposed on May 4, 2023, and Eskenazi, Smith, and Mobin were to be deposed on May 5, 2023. In the afternoon of May 4, 2023, Plaintiff’s counsel emailed that neither Plaintiff’s counsel nor the experts are available on the noticed dates, and that Plaintiff had objected to those deposition notices. (Mot. Exh. D.) On May 4, 2023 and May 5, 2023, neither Plaintiff’s counsel or Plaintiff’s experts appeared for their deposition. The last communication between the parties, based on the evidence provided, was on May 8, 2023, in which Plaintiff’s counsel asserted discovery was closed.  

Defendants argue that Plaintiff is refusing to produce her experts for their deposition. However, the evidence provided does not demonstrate this contention. Rather, it appears that Defendants unilaterally noticed the experts’ depositions, and neither Plaintiff’s counsel nor any of the experts were available on that date. Nonetheless, Defendants proceeded with the depositions and obtained certificates of non-appearance. There is no evidence that Plaintiff “blatantly refused to provide her experts” (Mot. at p. 5, lines 12-13) or any further meet and confer efforts to establish a mutually agreeable date to conduct the depositions. Furthermore, proper service of a deposition notice of an expert witness must be accompanied by the tender of the expert witness fee. (Code Civ. Proc., § 2034.460, subd. (a).)  If the noticing party fails to tender the expert fee, then the expert shall not be deposed unless the parties stipulate otherwise. (Code Civ. Proc., § 2034.460, subd. (b).) There is no evidence that Defendants tendered the experts’ fees, or any stipulation otherwise, to have effectively required the retained experts to appear for their deposition.  

 

Based on the foregoing, the motion is denied without prejudice. 

 

Moving party is ordered to give notice.   

 

PLEASE TAKE NOTICE: 

  • Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

  • If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept31@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿ 

  • Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿ 

  • If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿ 

Dated this 23rd day of October 2023 

 

  

 

 

Hon. Michelle Kim 

Judge of the Superior Court