Judge: Robert B. Broadbelt, Case: 19STCV28515, Date: 2022-08-16 Tentative Ruling

Case Number: 19STCV28515    Hearing Date: August 16, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Defendants Affeld Grivakes, LLP and David W. Affeld (“Defendants”)

RESPONDING PARTIES:    Plaintiffs Michael LaPorta and Beverlee LaPorta (“Plaintiffs”)

(1)   Defendants’ Motion in Limine No. 9

MOVING PARTY:                Plaintiff Beverlee LaPorta

RESPONDING PARTIES:    Defendants Affeld Grivakes, LLP and David W. Affeld

(2)   Notice of Remote Appearance

The court considered the moving and opposition papers filed in connection with motion in limine number 9.  The court considered plaintiff Beverlee LaPorta’s notice of remote appearance and Defendants’ opposition to plaintiff Beverlee LaPorta’s remote appearance.

MOTION IN LIMINE NO. 9

Defendants move the court for an order (1) excluding expert opinion regarding the standard of care of attorneys applicable to the issues of this action; (2) limiting the opinions of Plaintiffs’ non-retained expert Paul Hittelman to those expressed at his deposition; and (3) excluding any testimony, argument or exhibit pertaining to breach of the standard of care for attorneys and any resulting harm to Plaintiffs.

The court denies Defendants’ motion in limine number 9.  “[A] party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult.”  (Easterby v. Clark (2009) 171 Cal.App.4th 772, 780.)  Plaintiffs intend to present Hittelman to testify about the value of the underlying action and other standard of care issues, about which Hittelman did not testify.  However, Plaintiffs assert that they “have no object[ion] to allowing a further deposition” prior to Hittelman’s testimony.  (Opp., 3:10-11.)  The court denies Defendants’ motion in limine because (1) Plaintiffs have already designated Hittelman as a non-retained expert that was anticipated to provide opinion “regarding the Defendants’ representation of Plaintiffs in the Underlying Action,” and (2) this modification regarding the scope of Hittelman’s testimony does not come at a time when further deposing Hittelman is unreasonably difficult, particularly considering Plaintiffs do not oppose any further depositions. 

The court orders (1) Plaintiffs to produce Paul Hittelman for a further deposition on the matters he will testify about at trial within 21 days of the date of this order, and (2) that Defendants may submit a supplemental expert witness list within 20 days after the further deposition of Paul Hittelman is completed.

PLAINTIFF BEVERLEE LAPORTA’S REMOTE APPEARANCE

After considering the factors set forth in Code of Civil Procedure section 367.75, subdivisions (b) and (f), the court finds that an in-person appearance would materially assist the resolution of this action and therefore sustains Defendants’ objection to plaintiff Beverlee LaPorta’s notice of remote appearance.  (Code Civ. Proc., § 367.75, subd. (b)(3); Cal. Rules of Ct., rule 3.672, subd. (h)(3)(B).)  Although the court notes that Beverlee LaPorta has submitted three pages of medical documents, as noted by Defendants, the submitted evidence does not establish that Beverlee LaPorta cannot, due to any medical or other conditions, safely make an in-person appearance at trial.

The court therefore orders that, if plaintiff Beverlee LaPorta testifies at trial, she is required to appear in person.  (Code Civ. Proc., § 367.75, subd. (b).)

             The court orders defendants Affeld Grivakes, LLP and David W. Affeld to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 16, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court