Judge: Monica Bachner, Case: 21STCV22955, Date: 2023-04-26 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV22955    Hearing Date: April 26, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants Fred Maidenberg’s and Maidenberg LLC’s motion for an order excluding testimony of Plaintiffs Roni Efron’s and 239 South Clark LLC’s expert witness, Arthur Dellinger is denied as moot.

          Defendants Fred Maidenberg and Maidenberg LLC (collectively, “Maidenberg”) (collectively, “Defendants”) move for an order to exclude Plaintiffs Roni Efron’s (“Efron”) and 239 South Clark, LLC’s (“239 South Clark”) (collectively, “Plaintiffs”) expert witness, Arthur Dellinger (“Dellinger”).  (Notice of Motion, pg. 2.)

          Background

On July 29, 2022, Plaintiffs made a demand for exchange of expert witness information pursuant to C.C.P. §2034.210.  (See Decl. of Weiss ¶1, Exh. 1.)  On August 22, 2022, Plaintiffs submitted a designation of a single expert witness and an accompanying attorney declaration pursuant to C.C.P. §2034.260.  (See Decl. of Weiss ¶2, Exh. 2.)  On August 22, 2022, Defendants submitted a statement pursuant to C.C.P. §2034.260(b)(2) that they did not at that time plan to call an expert witness.  (See Decl. of Weiss ¶3, Exh. 3.)  On August 23, 2023, Defendants served a notice of deposition by email and by federal express and included a check for $1,000.00 as payment for two hours of deposition at Dellinger’s stated rate of $500.00 per hour, pursuant to C.C.P. §2034.460(a), and the notice informed Plaintiffs that pursuant to C.C.P. §2034.415, Dellinger was required to produce any materials or categories of materials, including ESI, by September 1, 2022, three business days before his deposition.  (See Decl. of Weiss ¶4, Exh. 4.)  On August 30, 2022, Plaintiffs served objections to the notice of deposition and refused to produce Dellinger for his deposition.  (See Decl. of Weiss ¶5, Exh. 5.)  This Court continued the trial date on the instant action from October 11, 2022, to May 30, 2023, which also reset all statutory pretrial deadlines.  (9/20/22 Minute Order on Ex Parte Application.)  On March 21, 2023, Plaintiffs served a new demand for exchange of experts.  On April 10, 2023, the deadline for disclosure, Plaintiffs “de-designated” Dellinger and designated a new expert, Jason Engel (“Engel”).  (See Decl. of Weisskopf ¶¶5, 6, Exhs. C, D.)

Defendants filed the instant motion on September 14, 2022.  On April 13, 2023, Plaintiffs filed their opposition.  On April 19, 2023, Defendants filed their reply.

Discussion

A party may withdraw its previously designated expert witness before his deposition.  (County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 657.)

          Defendants’ instant motion is moot. Plaintiffs properly withdrew their previously designated expert witness before he was deposed.  (Id.)  Plaintiffs then timely designated another expert when the trial and all related dates were continued pursuant to this Court’s 9/20/22 Minute Order.  Dellinger can no longer testify as Plaintiffs’ expert witness, rendering Defendants’ motion moot.

          Based on the foregoing, Defendants’ motion is denied as moot.

Dated:  April _____, 2023

Hon. Daniel M. Crowley

Judge of the Superior Court