I. Background 

Plaintiff Anne McLellan (“Plaintiff”) filed this action against defendants, Temple City, Temple City Parks and Recreation, County of Los Angeles, and State of California for damages arising from a trip and fall on an alleged defective stair while walking on the steps of a jungle gym.  Plaintiff alleges defendants negligently owned and maintained the subject jungle gym located at Live Oak Park.     

Temple City (“City”) now moves for a Protective Order to quash Plaintiff’s notice of the City’s playground equipment consultant Samual DeFillippo (“DeFillippo”), or alternatively for an order limiting the deposition inquiry. 

Plaintiff filed an untimely opposition by two court days; this Court, in its discretion, will consider the opposition. The City filed a reply.  

The City asserts that it retained DeFillippo to provide a declaration in support of the City’s motion for summary judgment. The City objected to Plaintiff’s deposition notice of DeFillippo on the grounds that no expert exchange is yet due, and Plaintiff has not identified any objective fact that may create a significant question as to the foundational basis for DeFillippo’s opinions to fall within the exception of St. Mary Medical Center v. Sup. Ct. (1996) 50 Cal.App.4th 1531. 

Plaintiff argues there is a legitimate question, because DeFillippo’s relies on CPSC Handbook for Public Playground Safety, Section 5.2.1 to opine that the step ladder to access the play structure is not a “play feature.” Plaintiff contends she should be permitted to inquire into the foundation of DeFillipo’s opinion, and that his declaration contains incorrect and incomplete statements with no factual basis such as his position on the “minor tread deflection.”  

The City argues this matter is distinguishable from St. Mary because Plaintiff has not identified any objective evidence that DeFillippo’s opinions lack foundation. The City argues both DeFillippo and Plaintiff’s expert Mark Burns reached different conclusions based on the same foundational evidence of interpreting the ASTM and CPSC standards. The City avers a disagreement between experts regarding diverging interpretations of the same foundation fails to satisfy St. Mary’s criteria.  

II. Request for Judicial Notice 

Plaintiff requests the Court to take judicial notice of (1) Plaintiff’s complaint filed on February 22, 2024, and (2) Exhibit 8: The CPSC Handbook for Public Playground Safety. 

Request 1 is granted. Request 2 is denied.  

III. Motion for Protective Order 

CCP § 2025.420(a) states that “Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” 

In this case, the City, through its counsel, assert  Plaintiff attempted to meet and confer regarding DeFillippo’s deposition, and the parties did not come to an agreement on whether Plaintiff provided objective facts to justify the deposition.  (Mot. Bagnaschi Decl. ¶¶ 7-8.) The Court finds this is sufficient to satisfy CCP § 2025.420(a).   

CCP § 2025.010 provides, “[a]ny party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by taking in California the oral deposition of any person, including any party to the action.”    

Pursuant to CCP § 2025.420(b), “[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:  

“(1) That the deposition not be taken at all.” 

“(10) That the scope of the examination be limited to certain matters.” 

(CCP § 2025.420 (b)(1) and (10).) 

IV. Discussion  

The issue as to the instant motion is whether Plaintiff has articulated a legitimate question regarding the foundation of the opinion of Defendant’s expert, such that Plaintiff may depose Defendant’s expert witness limited to that subject, pursuant to the exception created in St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531. The parties agree that, under the current standard, “the parties should be allowed to depose an expert who supplies a declaration or affidavit in support of or in opposition to summary judgment or summary adjudication where there is a legitimate question regarding the foundation of the opinion of the expert.” (Id. at 1540.) The St. Mary's court created this exception in order to remedy the juxtaposition of the time requirements of¿sections 2034¿and¿437c, which left the St. Mary's summary judgment movants with no relief from an inequitable denial of their motion in circumstances where the opposing expert opinion relied on factually incorrect bases. (Id. at 1538.) 

The Court is not persuaded by Plaintiff’s contention that DeFillippo’s opinion that “[t]he defect alleged by the plaintiff was a minor tread depression on the last step of the stepladder” and “[t]he minor tread deflection on the stepladder step did not pose a substantial risk of injury to its intended users” are factually incorrect. (Mot. DeFillippo Decl. ¶¶ 6, 12) Plaintiff alleged in her complaint that she tripped due to a “defective stair, including a raised lip.” (Compl. at ¶ 8.) The raised lip is not alleged to have been the exclusive factor giving rise to the contention that the stair was “defective,” and thus does not preclude the possibility that a tread depression may be contemplated as falling within the factual allegation of a “defective stair”. This is further supported by Plaintiff’s own expert Mark Burns (“Burns”), who also opined on the tread deflection. Burns disagreed with the DeFillippo’s opinion that the tread depression was not minor because the surface was depressed approximately 1 inch below the metal nosing, and that it created a substantial trip/misstep hazard. (Opp. Burns Decl. ¶ 11.) The Court agrees that competing interpretations of the ASTM and CPSC, and whether or not the tread depression could be considered “minor”, do not create legitimate questions relating to the foundation of DeFillippo’s opinion as contemplated by St. Mary. The Court agrees with the City that the questions Plaintiff raises are in the nature of cross-examination, as the dueling experts appear to come to differing conclusions based on the same set of facts. This is distinguishable from St. Mary, where petitioners submitted evidence which suggested that “the bases for [the expert’s] conclusions to be untenable.” (St. Mary, supra, 50 Cal.App.4th at 1535.) 

Based on the foregoing, the protective order to preclude the City’s expert DeFillippo from being deposed under the St. Mary’s exception, prior to expert exchange, is GRANTED. 

Moving party is ordered to give notice.  

PLEASE TAKE NOTICE: 

Dated this 21st day of February 2024