Judge Serena R. Murillo, Case Number: 20STCV48832, Date: 2023-09-29 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV48832, Date: 2023-09-29 Tentative Ruling

Case Number: 20STCV48832 Hearing Date: September 29, 2023 Dept: 31

TENTATIVE

Plaintiff’s unopposed Motion to Exclude Expert at Trial or, in the Alternative, Compel Deposition is GRANTED in part and DENIED in part. The motion to compel the deposition is granted. Oaks is ordered to appear for deposition within 30 days of this order. The motion to exclude is denied.

Legal Standard

Code of Civil Procedure section 2034.300 provides:

Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on 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 do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

Failure to comply with expert designation rules may be found to be “unreasonable” when a party's conduct gives the appearance of gamesmanship. (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447, citing Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504.) The operative inquiry is whether the conduct being evaluated will compromise these evident purposes of the discovery statutes: “to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” (Id. at p. 1504.)

On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list. Except as otherwise provided, the procedures for taking oral and written depositions apply to a deposition of a listed trial expert witness. (Code Civ. Proc., § 2034.410.) The service of a proper deposition notice accompanied by the tender of the expert witness fee is effective to require the party employing or retaining the expert to produce the expert for the deposition. (Code Civ. Proc., § 2034.460, subd. (a).) If the party noticing the deposition fails to tender the expert’s fee under Section 2034.430, the expert shall not be deposed at that time unless the parties stipulate otherwise. (Code Civ. Proc., § 2034.460, subd. (b).)

Discussion

Plaintiff moves to exclude Defendant GM’s expert James Oaks’ testimony from trial, arguing that Defendant has acted unreasonably in failing to produce him. In the alternative, Plaintiff moves to compel Oaks’ deposition.

On July 6, 2023, GM served a demand for the exchange of expert witness information pursuant to Code of Civil Procedure section 2034.210(c). (Kim Decl., Exh. 1.) On July 27, 2023, GM served its First Designation of Expert Witness, identifying James Oaks as GM’s retained expert witness. (Id., Exh. 2.)

On July 28, 2023, Plaintiff noticed the deposition of GM’s expert witness, Mr. Oaks pursuant to Code of Civil Procedure section 2034.410. On August 8, 2023, Defendant served boilerplate objections, and objected to the holding of the deposition on several grounds including the unavailability of its designated expert witness. While stating that it would produce a witness at a mutually convenient time and place, Defendant did not provide a new date for Mr. Oaks’s deposition. (Id., Exh. 5.) On August 9, 2023, Plaintiff sent Defendant a meet and confer email requesting dates for the deposition to go forward. No response was received. (Id., Exh. 6.) On August 10, 2023, Plaintiff attempted to meet and confer telephonically regarding this dispute. A voicemail was left due to Defendant’s unavailability. No return call was received. (Id., Decl. ¶ 10.) On August 17, 2023, the parties met and conferred telephonically regarding the deposition of Mr. Oaks. Plaintiff requested dates of availability for the deposition of Defendant’s expert, Mr. Oaks to go forward, but Defendant did not provide a date for the deposition to go forward. (Id., ¶ 11.) As of the date of this Motion, GM has not provided alternate dates for GM’s expert witness to be deposed.

The Court finds that Defendant’s position is not unreasonable in that it does not show gamesmanship. As such, the motion to exclude Defendant’s expert’s testimony is denied.

However, the Court finds that Defendant’s expert’s deposition should be compelled. While Defendant objected to the deposition notice because it was unilaterally set, Plaintiff’s counsel attests to and provides evidence of his efforts to schedule the deposition on a mutually convenient date. Defendant did not respond. As such, the Court finds the objection to the deposition based on being unilaterally set is invalid.

The Court notes that Plaintiff’s deposition notice included a request for documents under Code of Civil Procedure section 2034.415. However, although not requested by Plaintiff in this motion, the Court clarifies that it is not compelling the production of the materials called for by the deposition notice as no legal authority is cited in this motion to do so, and Plaintiff is moving under Civil Procedure section 2034.010 et seq.

Therefore, the motion to compel the deposition of Oaks is granted. Oaks is ordered to appear for deposition within 30 days of this order.

Conclusion

Accordingly, Plaintiff’s Motion to Exclude Expert at Trial or, in the Alternative, Compel Deposition is GRANTED in part and DENIED in part. The motion to compel the deposition is granted. Oaks is ordered to appear for deposition within 30 days of this order. The motion to exclude is denied.

Moving party is ordered to give notice.