Judge Ronald F. Frank, Case Number: 21STCV34153, Date: 2023-08-30 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV34153, Date: 2023-08-30 Tentative Ruling

Case Number: 21STCV34153 Hearing Date: August 30, 2023 Dept: 8

Tentative Ruling¿

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HEARING DATE: August 30, 2022¿¿

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CASE NUMBER: 21STCV34153

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CASE NAME: Mynor Gunther Santizo v. Toyota Motor Company, et al.

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MOVING PARTY: Plaintiff Mynor Santizo

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RESPONDING PARTY: Defendant, Toyota Motor Company ¿¿

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MOTION:¿ (1) Ex parte Application to Compel Deposition of Dr. Elizabeth Raphael

Tentative Rulings: (1) Deny. But the Court will take oral argument as to whether the MSJ hearing, and the trial, should be continued to allow full depositions of the experts rather than the narrow ambit of a St. Mary Deposition

Plaintiff brought this ex parte application to compel the deposition of Toyota’s expert Elizabeth Raphael. The case is set for jury trial on November 20, 2023 and Toyota has a pending motion for summary judgment scheduled to be heard on September 21, 2023, a month before the motion cut-off date but after the date for an expert witness demand to be made. Dr. Raphael submitted a declaration in support of Toyota’s MSJ on July 7, 2023. That declaration states the Dr. Raphael is a physician and biomechanical engineer. Paragraph 2 of her declaration states that she was retained by Toyota to give opinions on biomechanics and injury causation in the subject 2019 motor vehicle collision. In her brief declaration of 11 total paragraphs, Dr. Raphael opines that perpendicular forces, not horizontal forces acting on Plaintiff’s thoracic spine, were the cause of the injury pattern and resulting paraplegia that she read in her review of the case materials. She also opined that Plaintiff has a pre-existing inflammatory disease making him highly susceptible to severe injury “even from a trivial event.” She concluded that the “rear impact alone, and not the performance of the driver’s seat or seat belt, caused Mr. Santizo’s injuries.”

Plaintiff’s ex parte application seeks to compel Dr. Raphael’s deposition so Plaintiff can file opposition to the MSJ. The ex parte application is based on a claimed properly noticed deposition and based on a subpoena Plaintiff’s counsel had served on Dr. Raphael in Mobile County, Alabama. The ex parte application rests in part of Code of Civil Procedure §2020.240 and 2025.440(b), remedies for non-compliance with a subpoena. According to the ex parte application, Dr. Raphael attached as Exhibit B to her declaration a collection of the documents she reviewed in this case to form her opinion; Exhibit B is 4 pages long and per Plaintiff’s application it “lists virtually every piece of evidence in this case.” The ex parte application rests in large part on a 1996 Second District discovery precedent where the Court of Appeal ordered issuance of a writ of mandate directing the trial court to grant a motion to compel an expert deposition limited to foundational issues relating to the opinions rendered in the declaration in opposition to the motion for summary judgment. (St. Mary Medical Center v. Superior Court (1996) 50 Cal.App.4th 1531, 1540.) The St. Mary decision required the deposition of the expert, who had given a declaration for the plaintiff’s opposition to the defense MSJ, even though the time for expert witness exchange had not yet occurred.

Toyota raises several points in opposition to the ex parte application. Toyota questions whether the subpoena requiring Dr. Raphael to attend a deposition was properly issued or served, given the geographical ambit of a California court’s subpoena power and the location set for the deposition while the witness was apparently still in Alabama but lives and works in Palo Alto, California. This, by itself, would provide a sufficient basis for the Court to deny the motion and it is a concern the Court itself raised at the initial hearing on the ex parte application. Second, Toyota asserts that a notice of deposition or a subpoena cannot be used to compel an expert to be deposed before the time for exchange of experts. While true, Toyota’s second point is subject to the St. Mary exception. Third, Toyota asserts that St. Mary is limited to its narrow facts and is distinguishable from the circumstances presented here. The Court disagrees with Toyota’s argument that there is no such a thing as a St. Mary Deposition. There is. A St. Mary Deposition is one where the trial court in its discretion determines that a 437c expert declaration raises a legitimate question regarding the foundation of the declarant’s opinion, such as reliance on a demonstrably incorrect fact, and in that circumstance the trial court will allow such as a narrowly tailored expert deposition. The Second District’s analysis noted there was no pending trial date there so no looming expert designation deadline, in contrast to the circumstances here.

The Court’s assessment of the circumstances here suggests that the Court should deny the ex parte application and require Plaintiff to file a counter-declaration from Plaintiff’s expert in response to the MSJ disputing Dr. Raphael’s opinions rather than prematurely deposing Dr. Raphael to seek to challenge her opinions. Or that the MSJ hearing and trial date might be postponed to enable both sides to conduct expert depositions at least as to the biomechanics and causation issues. The Court finds that the ambit of what Plaintiffs seek from Dr. Raphael’s deposition is far broader than what the Court beleives St. Mary might reasonably allow, judging from the rhetorical questions and argument raised in Plaintiff’s ex parte application. In the Court’s view, an expert in a St. Mary Deposition need not “show her math” as Plaintiff’s application requests, nor would Plaintiff be entitled in a St. Mary Deposition to require Dr. Raphael to specifically list the material she relied on for each of her conclusions as the ex parte application seeks. Those inquiries and the many others raised in the ex parte application should, in the Court’s view, await a post-designation expert deposition, not a pre-designation St. Mary Deposition. A St. Mary Deposition would allow Plaintiff to challenge the accuracy of factual propositions Dr. Raphael relied upon, e.g., was the fracture at T7-T8 or elsewhere, or was the impact from the side rather than the rear of Plaintiff’s car, or if there were no radiology reports or studies in the 4-page list of materials relied upon then a challenge to Dr. Raphael’s stated reliance on radiology in the medical history. It is not, as the Court reads the St. Mary opinion, a full-blown comprehensive expert deposition as to each of the expert’s opinions and the facts or references upon which each opinion is based.

But it is apparent to the Court that Plaintiff seeks a full, wide-ranging expert deposition under the guise of the St. Mary rule, rather than a tightly drawn, narrowly focused inquiry about a limited scope of foundational subjects. The Second District cautioned that the St. Mary Deposition “process should not be utilized to turn summary proceedings into mini-trials. . . . There must be objective facts presented which create a significant question regarding the validity of the affidavit or declaration which, if successfully pursued, will impeach the foundational basis of the affidavit or declaration in question.” (St. Mary, supra, 50 Cal.App.4th at pp. 1540–41.) The ex parte application does not raise assert objective facts to raise a question regarding the validity of the Dr. Raphael Declaration that would impeach a foundational fact she relied on.

As the Second District observed, “it would defeat the purpose of the summary procedure were we to recognize an absolute right of a party involved in the process to depose any person who provides evidence in support of or opposition to the proceeding. On the reverse side of the coin, it would defeat the concept of a summary procedure if the opposition party were to be allowed to defeat the motion by less than candid declarations or affidavits in opposition. (St. Mary, supra, 50 Cal.App.4th at p. 1538.) Here, it cannot be said that Toyota seeks to “defeat” an MSJ because it is one who filed it.