SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

1. Background 

Defendants The Pape Group, Inc., Pape Material Handling, Inc. and Anthony Monjaraz, (“Defendants”) filed this motion to authorize the remote deposition of Defendants’ non-retained expert Randy Scott Rosen, M.D. (“Dr. Rosen”) who is presently confined in state prison at California Department of Corrections and Rehabilitation, Sugar Pine Conservation Camp #9 (“Sugar Pine”), or in the alternative authority to depose Dr. Rosen at Sugar Pine with a court reporter. Defendants request the deposition of Dr. Rosen to take place on or before the expert discovery deadline of August 9, 2023. Defendants further request an order to remove Dr. Rosen from Sugar Pine to testify at trial, currently set for June 13, 2023.  

Plaintiff Deitra Leak (“Plaintiff”) opposes the motion, and Defendants filed a reply.  

 

2. Request for Judicial Notice 

Defendants request the Court to take judicial notice of the following: 1) The criminal docket, from the Orange County Superior Court, for Randy Scott Rosen, M.D. (CDCR no. BU0353), Case Nos. 20CF1675 and 20CF1682; (2) The inmate information for Randy Scott Rosen, M.D. (CDCR no. BU0353), from the California Department of Corrections and Rehabilitation webpage at inmatelocator.cdcr.ca.gov; (3) The Stipulate Order for Prohibition of Practice prohibiting Randy Scott Rosen, M.D. from practicing medicine in California; and (4) August 18, 2022 magazine article entitled, “California physician who fraudulently billed insurers $600M gets 10 years in prison.”  

Request 1 is granted. (A court docket is judicially noticeable.  (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 790 n.10.).)  

Requests 2-3 are granted as to their existence, but not as to the truth of the matters contained (Courts may not take judicial notice of the contents of Internet sites and blogs, but may as to their existence. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194.); While courts may take judicial notice of official acts and public records, that does not include the truth of the matters asserted in the documents. (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.).)  

Request 4 is denied.  

 

3. Motion to Authorize Deposition of Prisoner 

On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list.  The procedures for taking oral and written depositions set forth in Sections 2025.010, 2026.010, and 2028.010 apply to a deposition of a listed trial expert witness except as otherwise provided.  (Code Civ. Proc., § 2034.410.) Good cause must be shown to take the deposition of an expert witness. (See Bolles v. Superior Court (1971) 15 Cal.App.3d 962, 963.) The showing of good cause must be liberally construed and “the moving party is entitled to discovery upon a showing that the information sought is necessary for the preparation of its case.” (Id.) Treating physicians are regarded as percipient witnesses, as in they are not “retained for the purpose” of giving expert testimony. What distinguishes a treating physician from a retained expert is not the content of the testimony, but the context in which he became familiar with the plaintiff’s injuries. (Kalaba v. Gray (2002) 95 Cal.App.4th 1416, 1421.) Treating physicians may offer both fact and opinion testimony because they are more like fact witnesses who have acquired, independently of the litigation, personal knowledge of relevant facts, and whose training, skill, and experience enables him or her to form an opinion about those facts. (Id.) 

Dr. Rosen is listed as one of Defendants’ non-retained experts. Defendants aver that Dr. Rosen is currently incarcerated at Sugar Pine, and that his medical license has been revoked, for fraudulent insurance benefits claims. (Mot. Decl. Blum, ¶ 11, 13-14.) The Court notes that Sugar Pine is a state prison. To take the deposition of a prisoner incarcerated in a state institution, a party must secure a court order; deposition testimony cannot be obtained by subpoena, deposition notice, or writ of habeas corpus ad testificandum. Cal. Penal Code § 2623 governs the deposition of prisoners in state prison.  

 

Cal. Penal Code § 2623 provides: 

If in a civil action or special proceeding a witness be a prisoner, confined in a state prison within this state, an order for the prisoner's examination in the prison by deposition may be made. 

1. By the court itself in which the action or special proceeding is pending, unless it be a small claims court. 

2. By a judge of the superior court of the county where the action or proceeding is pending, if pending before a small claims court or before a judge or other person out of court. 

Such order can only be made on the motion of a party, upon affidavit showing the nature of the action or proceeding, the testimony expected from the witness, and its materiality. The deposition, when ordered, shall be taken in accordance with Section 2622. 

 

(Cal. Penal Code § 2623.) 

 

 

Cal. Penal Code § 2622 provides: 

When the order for personal appearance is not made pursuant to Section 2620 or Section 2621 the deposition of the prisoner may be taken in the manner provided for in the case of a witness who is sick, and Chapter 4 (commencing with Section 1335) of Title 10 of Part 2 shall, so far as applicable, govern in the application for and in the taking and use of that deposition. The deposition may be taken before any magistrate or notary public of the county in which the prison is situated; or in case the defendant is unable to pay for taking the deposition, before an officer of the prison designated by the board, whose duty it shall be to act without compensation. Every officer before whom testimony shall be taken under this section, shall have authority to administer, and shall administer, an oath to the witness that his or her testimony shall be the truth, the whole truth, and nothing but the truth. 

 

(Cal. Penal Code § 2622.) 

 

In sum, to obtain a court order, the party must make a motion accompanied by an affidavit identifying (1) the nature of the proceeding, (2) the testimony expected, and (3) the materiality of the testimony. “Material facts” are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense.  (Cal. Rules of Court, Rule 3.1350, subd. (a)(2).)   

Defendants provide the declaration of their counsel, Fred Blum (“Blum”), who declares that Plaintiff had a preexisting history of spinal injuries from three prior motor vehicle accidents on July 14, 2011, March 30, 2018, and April 5, 2018. (Mot. Decl. Blum, ¶ 5.)  Plaintiff saw Dr. Rosen 19 days before the subject June 19, 2018 automobile incident, in which Plaintiff claimed cervical pain and lumbar pain. (Id. at ¶ 6.)  On June 21, 2018, two days after the incident, Plaintiff saw Dr. Rosen and stated she experienced cervical and lumbar pain immediately after the accident. (Id. at ¶ 8.)  Plaintiff’s next visit was a month later on July 16, 2018, in which she claimed neck and lumbar pain. (Id. at ¶ 9.)  Defendants argue Dr. Rosen’s deposition is necessary because he has relevant information regarding the veracity of Plaintiff’s claims. Defendants further argue that Mr. Rosen can testify to Plaintiff’s injuries prior to the accident, whether her pre-incident injuries were worsened by the incident, medical costs incurred after the incident related to the prior injuries, and whether Plaintiff has been inconsistent in the description of her alleged injuries. Defendants contend that jurors should see Dr. Rosen to observe his demeanor and conclude on Dr. Rosen’s reliability.  

In opposition, Plaintiff avers that Dr. Rosen is not Plaintiff’s designated expert and that Plaintiff does not intend to call Dr. Rosen at trial. Plaintiff argues that Defendants have known about Dr. Rosen for over a year, and that Defendants are seeking to place Dr. Rosen in front of a jury to taint Plaintiff with Dr. Rosen’s misconduct, which bears no nexus with Plaintiff’s litigation. Plaintiff further contends that Defendants first noticed Dr. Rosen’s deposition on May 13, 2022, with the deposition date set for June 13, 2022, when defense counsel was aware Dr. Rosen was already in jail awaiting trial for insurance fraud according to a letter dated June 24, 2022. Plaintiff objected to the noticed deposition of Dr. Rosen. Plaintiff filed a protective order on June 9, 2023, currently set to be heard on September 12, 2023, related to Defendants’ notice of deposition of Dr. Rosen. Plaintiff asserts that Defendants have not been diligent in attempting to depose Dr. Rosen when they have known of Dr. Rosen’s treatment of Plaintiff for nearly two years. 

In reply, Defendants contend that they are not arguing that Dr. Rosen is Plaintiff’s designated expert, but that Dr. Rosen is Defendants’ non-retained expert. Furthermore, Defendants reiterate that Dr. Rosen’s testimony is relevant and material to the action to warrant his examination. Defendants further contend that defense counsel’s knowledge of Dr. Rosen’s incarceration does not prevent Defendants from seeking to depose Dr. Rosen afterwards, because Defendants retained new defense counsel on June 9, 2023.  

Here, Dr. Rosen is an incarcerated individual whose relationship to this matter is that he treated Plaintiff on four occasions. Defendants contend that the materiality of the expected testimony goes to Plaintiff’s claimed injuries. Defendants’ supporting evidence provides that Dr. Rosen saw Plaintiff on: May 31, 2018, June 21, 2018, July 16, 2018, and August 21, 2018. Prior to the June 19, 2018 automobile incident, which forms the basis of this lawsuit, Dr. Rosen evaluated Plaintiff on May 31, 2018 for pain management; Plaintiff stated that she was involved in two prior motor vehicle accidents on March 30, 2018 and April 5, 2018. Thereafter, Dr. Rosen evaluated Plaintiff two days after the incident on June 21, 2018, and about one month later on July 16, 2018. Plaintiff last saw Dr. Rosen for an epidural injection on August 21, 2018.  

The Court is persuaded that Dr. Rosen is a material witness to the fact that Plaintiff was treated for injuries prior to the subject incident. Even if defense counsel knew that Dr. Rosen was in custody, this fact is irrelevant because it is not a factor the Court must consider pursuant to Cal. Penal Code § 2623. Further, Plaintiff’s contention that Dr. Rosen is not Plaintiff’s designated expert and that Plaintiff has no intention of calling Dr. Rosen at trial is not persuasive and irrelevant. Dr. Rosen is one of Plaintiff’s treating providers and Defendants’ non-retained expert. Accordingly, the motion to authorize the deposition of Dr. Rosen is granted. 

However, given that in the Personal Injury Court system this case will be tried by a different court than the court ruling on this motion, the Court finds it appropriate for the trial judge to rule on the issue of ordering Dr. Rosen to be transported from Sugar Pine to testify at trial. It is in the discretion of the trial judge to determine if the prejudice to Plaintiff is outweighed by the probative value. The Court will not rule upon this unripe issue here.  

Based on the foregoing, Defendants’ motion to authorize Dr. Rosen’s deposition is granted. Dr. Rosen is to be deposed no later than August 8, 2023 either via two-way electronic audiovisual communication pursuant to Cal. Penal Code § 2624, or in person pursuant to Cal. Penal Code § 2622.  

 

Moving Defendants are ordered to give notice. 

 

 

Dated this 3rd day of August, 2023