Judge: Robert B. Broadbelt, Case: 21STCV33172, Date: 2023-08-30 Tentative Ruling

Case Number: 21STCV33172    Hearing Date: August 30, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Agavni Sagryan

RESPONDING PARTY:       Defendant General Motors, LLC

Motion for Order Excluding Expert Witness from Testifying at Trial

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Plaintiff Agavni Sagryan (“Plaintiff”) moves the court for an order excluding the expert witness James Oaks (“Oaks”) designated by defendant General Motors, LLC (“Defendant”) from testifying at trial.  Alternatively, Plaintiff moves the court for an order compelling Oaks to appear for deposition.

First, the court denies Plaintiff’s request that the court exclude Defendant’s expert from testifying at trial.

“[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to . . . [¶¶] (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”  (Code Civ. Proc., § 2034.300, subd. (d).)

Plaintiff contends that the requested relief is warranted because, after Defendant served its First Designation of Expert Witness identifying Oaks as its retained expert, Plaintiff properly noticed the deposition of Oaks.  (Matera Decl., Exs. 3 [Defendant’s First Designation of Expert Witness], 4 [Pl. Notice of Expert Deposition].)  In response to the notice of deposition, Defendant served objections and did not provide alternate dates for Oaks to be deposed.  (Matera Decl., ¶¶ 8-10; Matera Decl., Ex. 5 [Defendant’s Objections to Pl. Notice of Expert Deposition].)  In opposition, Defendant contends that (1) Plaintiff failed to meet and confer in good faith, and (2) Defendant has been attempting to schedule a vehicle inspection so that Oaks can testify about the condition of the vehicle, but Plaintiff’s counsel has not responded to Defendant’s counsel’s requests to schedule the inspection.  (Major Decl., ¶ 6.)  In reply, Plaintiff argues that Defendant has since failed to produce its expert for deposition at the agreed-upon date of July 21, 2023 and did not meet and confer regarding a vehicle inspection until August 15, 2023.  (Matera Reply Decl., Ex. 2 [Certificate of Non-Appearance for Oaks], Ex. 3 [Aug. 15, 2023 email requesting “dates to depose [Plaintiff] and inspect the subject vehicle].)

As set forth above, Defendant has produced evidence establishing that (1) it will be infeasible for its expert “to opine on the condition of the vehicle when the vehicle inspection hasn’t occurred yet[,]” and (2) counsel for the parties have not yet scheduled a date for the vehicle inspection.  (Major Decl., ¶ 6.)  Plaintiff has not produced evidence showing that the parties have since scheduled the vehicle inspection, which is necessary for Defendant’s expert to testify about the condition of the subject vehicle.  (Matera Reply Decl., ¶ 8 [Defendant sent a meet and confer email to schedule the date of the vehicle inspection on August 15, 2023].) 

Thus, the court finds that, based on the evidence submitted in connection with this motion, Plaintiff has not demonstrated that Defendant has “unreasonably failed” to make Oaks “available for a deposition” in support of the request to exclude Oaks from testifying at trial.  (Code Civ. Proc., § 2034.300, subd. (d).)

Second, the court denies Plaintiff’s request that the court compel Defendant to produce Oaks for deposition without prejudice to any future motion seeking that relief.

As set forth above, Defendant has produced evidence showing that, before its expert can competently sit for deposition, the vehicle should be inspected.  The court has not been presented with evidence establishing that Defendant will not agree to produce Oaks for deposition.  Thus, the court finds that an order compelling Defendant to produce Oaks for deposition is unnecessary at this time.  Moreover, although Plaintiff has presented evidence in reply that Oaks did not appear for deposition on the date agreed upon by counsel, Plaintiff did not base the pending motion on that nonappearance.  (Matera Reply Decl., Ex. 2.)          

Finally, to the extent that Plaintiff is requesting that the court order Defendant’s expert to produce documents or tangible things at a deposition, the court denies that request because Plaintiff did not file a separate statement in compliance with California Rules of Court, rule 3.1345, as required.  (Cal. Rules of Ct., rule 3.1345, subd. (a)(5) [a separate statement is required for a motion “[t]o compel or to quash the production of documents or tangible things at a deposition”].)

ORDER

The court denies plaintiff Agavni Sagryan’s motion for order excluding expert witness from trial.

The court orders Plaintiff’s and Defendant’s counsel to meet and confer no later than September 6, 2023, to schedule the inspection of the subject vehicle and the deposition of Defendant’s expert witness James Oaks. 

The court orders defendant General Motors LLC to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 30, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court