Judge: Nathan Vu, Case: 30-2020-01148474, Date: 2023-08-07 Tentative Ruling
Motion to Compel Discovery
Defendants/Cross-Complainants Miguel Chavez’s; MRMIG Partners, LLC’s; MNAC Partners, LLC’s; Gilbert Chavez’s; and RAJT Enterprises, Inc.’s Motion to Compel the Deposition of Plaintiffs’ Retained Expert Barbara Luna is GRANTED.
Plaintiffs Robert Chavez; Advanced Floor Coatings, Inc. dba Allied International; and Maargel Partners, LLC dba Nectave are ORDERED to produce expert witness Barbara Luna for deposition at a mutually agreeable date and time, no later than 21 days after service of the notice if ruling.
Defendants/Cross-Complainants Miguel Chavez’s; MRMIG Partners, LLC’s; MNAC Partners, LLC’s; Gilbert Chavez’s; and RAJT Enterprises, Inc.’s request for sanctions is DENIED.
Defendants/Cross-Complainants Miguel Chavez; MRMIG Partners, LLC; MNAC Partners, LLC; Gilbert Chavez; and RAJT Enterprises, Inc. (collectively, Defendants) move to compel the production of documents from and deposition of Barbara Luna, an expert witness retained by Plaintiffs Robert Chavez; Advanced Floor Coatings, Inc. dba Allied International; and Maargel Partners, LLC dba Nectave (collectively, Plaintiffs).
Standard to Compel Expert Witness Deposition
At any time after a trial date has been set, any party may demand the mutual and simultaneous exchange by all parties of a list containing the name and address of any expert witness the other parties expects to offer in evidence at the trial. (See Code Civ. Proc., § 2034.210, subd. (a).)
Upon receiving from another party the list designating that party’s expert witnesses, a party may take the deposition of any person on the list. (See Code Civ. Proc., § 2034.280, subd. (a).) The party designating an expert witness must make that expert witness available for deposition upon service of a proper notice of deposition and payment of the expert’s fees by the deposing party or the party is prohibited from calling that expert witness at trial. (See Code Civ. Proc., §§ 2034.280, subd. (c), 2034.300, subd. (d), 2034.410, 2034.450.)
In addition, an expert witness whose deposition has been noticed must produce any materials or category of materials called for by the deposition notice, including electronically stored for information, no later than three business days before his or her deposition. (Code Civ. Proc., § 2034.415.)
If, after service of a notice of deposition, a party to the action, without having served a valid objection, fails to appear for examination or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. (Code Civ. Proc., § 2025.450 subd. (a).)
Discovery Cut-Off Deadline
There is no dispute that Plaintiffs designated Barbara Luna as a retained expert witness. In response, on June 15, 2023, Defendants served upon Plaintiffs a notice of deposition and request to produce documents for Barbara Luna. (See Decl. of Ethan S. Robinson (Robinson Decl.), Exh. D.)
Plaintiffs served objections to the notice of deposition on July 3, 2023. (Id., Exh. E.) Plaintiffs also stated that Barbara Luna had a scheduling conflict and would not appear at the noticed deposition. (Ibid.) There is no dispute that Barbara Luna did not appear at the deposition.
In order to accommodate the fact that expert witness information is often exchanged shortly before trial, the general discovery cutoffs do not apply to expert witness discovery. Instead, later deadlines are placed upon expert witness discovery, including depositions. Thus, the deposition of a designated expert witness may be taken as late as 15 days before trial and motions to compel expert witness discovery may be heard up to 10 days before trial. (See Code Civ. Proc., § 2024.030.)
Plaintiffs argue, however, that even these later expert witness discovery deadlines have passed. Plaintiff points to the fact that the parties stipulated to continue the trial set for August 1, 2022, to February 13, 2023. (See ROA #312.) The parties then entered into another stipulation to continue the trial from February 13, 2023 to July 24, 2023. (See ROA #369.)
Plaintiffs note that both stipulations and the accompanying orders say nothing about extending the discovery cut-off deadline, so that the discovery cut-off deadlines were based upon the August 1, 2022, trial date. Under normal circumstances, Plaintiffs would be correct. (See Code Civ. Proc., § 2024.020, subd. (b) [“[A] continuance or postponement of the trial date does not operate to reopen discovery proceedings.”].)
However, in response to the COVID-19 Pandemic, the Legislature enacted Civil Procedure Code section 599. That statute provides:
Notwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitration date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines are extended for the same length of time as the continuance or postponement of the trial date.
(See Code Civ. Proc., § 599, subd. (a).) This provision is scheduled to sunset on August 27, 2023, 180 days after February 28, 2023, the date on which Governor Newsom officially ended the COVID-19 state of emergency. (See www.gov.ca.gov/2023/02/28.)
Because section 599 is still in effect and because the discovery cut-off deadlines had not passed as of March 19, 2020, the two above-described continuances of the trial extended the deadline to take the deposition of Plaintiffs’ expert, Barbara Luna, to July 10, 2023.
Defendants noticed the deposition of Barbara Luna for July 7, 2023, which was prior to the discovery cut-off deadline of July 10, 2023. (See Robinson Decl., Exh. D.) In addition, Plaintiffs stated in their Opposition that they have offered Defendants dates to take Barbara Luna’s deposition. Thus, the court will grant the Motion to Compel.
Sanctions
If the court grants a motion to compel a deposition pursuant to a notice of deposition, the Civil Procedure Code requires the court to impose monetary sanctions “in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated” unless the court finds that the deponent “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2025.450, subd. (g)(1).)
Here, while Plaintiffs did not prevail, they did act with substantial justification as they relied on the fact that the parties did not stipulate to extend the discovery cut-off deadlines and that this would control under normal circumstances. Plaintiffs also relied upon the fact that neither party conducted discovery in the year following the two trial continuances, consistent with Plaintiffs’ understanding of the stipulations. Finally, Plaintiffs also acted reasonably in providing dates for the deposition of Barbara Luna once this motion was filed.
The court thus will deny Defendants’ request for sanctions.
Defendants shall give notice of this ruling.