Judge: Serena R. Murillo, Case: 18STCV07250, Date: 2022-12-12 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 18STCV07250    Hearing Date: December 12, 2022    Dept: 29

TENTATIVE

Plaintiff Monica Lazo’s motions to compel the deposition of Dr. AmirNovin and Dr. Welcher are GRANTED. Defendant Nareh Avedian is ordered to produce Dr. AmirNovin and Dr. Welcher for deposition within 30 days of this order.

Plaintiff’s request for monetary sanctions is DENIED. Defendant’s request for monetary sanctions is also DENIED.

Legal Standard

A subpoena for a deposition of a non-party is enforceable by a motion to compel compliance brought pursuant to Code of Civil Procedure section 1987.1. This section provides that “[i]f a subpoena requires the attendance of a witness . . . the court, upon motion reasonably made … or upon the court’s own motion after giving counsel notice and an opportunity to be heard, may make an order … directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (CCP § 1987.1.)

Further, Code of Civil Procedure section 1987.2(a) provides, in relevant part, that, in making an order on a motion to order compliance with a deposition subpoena, “the court may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees, if the court finds the motion was made or opposed in bad faith or without substantial justification . . . .” (CCP § 1987.2(a).)

A nonparty deponent may be subject to contempt or monetary sanctions for disobeying a court order (Code of Civ. Proc., § 2025.480, subd. (k)) or for “flouting” the discovery process by suppressing or destroying evidence (Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464, 476).  A nonparty may be punished by contempt (Code Civ. Proc., § 2020.240) or payment of $500.00 (Code Civ. Proc., § 1992). 

Discussion

On August 15, 2022, Plaintiff Noticed depositions of Dr. AmirNovin and Dr. Welcher for deposition on August 30, 2022 and August 31, 2022, respectively. (Garcia Decl., Exh. C.) On August 23, 2022, Defendant objected to the deposition. (Id., Exh. D.) Defendant refuses to provide further dates. Plaintiff has met and conferred with Defendant and engaged in informal communications with Defendant in an effort to resolve this issue without need of even more Court intervention of the court, however this effort was ultimately futile as Defendant continues to refuse to produce her experts. (Id., Exh. B.)

Defendant argues Plaintiff originally noticed Dr. AmirNovin and Dr. Welcher’s depositions for July 28, 2022 and July 29, 2022. After meeting and conferring on dates, all parties agreed that Dr. Welcher would be deposed on August 5, 2022 and Dr. AmirNovin would be deposed on August 8, 2022. Dr. Welcher and Dr. AmirNovin were produced for deposition on August 5, 2022, and August 8, 2022, however, Plaintiff chose not to appear. On September 20, 2022, the Court in a written ruling to reopen discovery agreed with Defendant that Plaintiff was “not diligent” with the cancellations of the depositions. After the Court’s ruling on September 21, 2022, Plaintiff’s counsel did renotice other depositions pursuant to the Court’s order yet inexplicably failed to renotice the deposition at issue here. Defendant’s counsel told Plaintiff’s counsel that the witness would not be produced again for deposition. (Boden Decl., ¶ 11.)

Defendant argues that on August 5, 2022, and August 8, 2022 Plaintiff failed to depose Dr. Welcher and Dr. AmirNovin, Defendant’s retained expert witness, as required under Section 2024.030 of the Code of Civil Procedure. Section 2024.030 provides, in part, that “Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a witness ... on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.” Defendant argues that Plaintiff inexplicably has failed to comply with this requirement and offered no substantive argument or explanation in response to her failure to do so.

The Court finds Defendant was properly served with amended deposition notices, set for August 30, 2022 and August 31, 2022. As discovery was reopened and trial was continued, Defendant’s objection on the basis that discovery had closed is not a valid objection any longer. The fact of the matter is discovery was reopened for the purpose of deposing these experts, Plaintiff had sent a valid deposition notice and Defendant now refuses to produce these experts for deposition. While the Court found that Plaintiff was not diligent in canceling these depositions, the Court is not aware of any requirement under a motion to compel depositions for Plaintiff to be diligent, and Defendant has cited to none. Plaintiff is entitled to this discovery. Thus, as Defendant was properly served with the deposition notices, and did not validly object, the motions to compel Defendant’s experts to appear for deposition are GRANTED.  Defendants are ordered to produce these experts for deposition within 30 days of this order.

As to sanctions, Defendant argues monetary sanctions should be denied because they would be unjust where Plaintiff was not diligent in seeking discovery and canceling the depositions when Defendant and their experts appeared and were ready to be deposed. Defendant argues that even the Court found Plaintiff was not diligent in its September 21, 2022 minute order reopening discovery. Defendant argues if the Court is inclined to grant the motion, it requests reimbursement for the fees and costs incurred by Dr. Welcher, Dr. AmirNovin and Defendant’s counsel in preparing for the deposition and waiting for the deposition’s commencement, in an amount to be determined by the Court.

The Court finds that imposing sanctions against Defendant under the circumstances would be unjust as Plaintiff canceled the depositions the first time they were noticed. As to Defendant’s request for reimbursement, CCP section 2023.040 provides that: A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.  (CCP section 2023.040.) Defendant’s notice of motion fails to comply with this requirement. In any event, Defendant has not cited to any authority which would allow sanctions in this situation.

Conclusion

Accordingly, Plaintiff’s motions to compel the deposition of Dr. AmirNovin and Dr. Welcher are GRANTED. Defendant is ordered to produce them for deposition within 30 days of this order.

Plaintiff’s request for monetary sanctions is DENIED. Defendant’s request for monetary sanctions is also DENIED.

Moving party is ordered to give notice.