Judge: Serena R. Murillo, Case: 21STCV01325, Date: 2023-01-03 Tentative Ruling

Case Number: 21STCV01325    Hearing Date: January 3, 2023    Dept: 29

Monica Sanz v. Linda Wilbur 

CASE NUMBER: 21STCV01325

[OPPOSED]

TENTATIVE

Defendant’s motion to reopen discovery, compel the deposition of Dr. Moussazadeh, and continue trial is GRANTED. Plaintiff is ordered to produce Dr. Moussazadeh for deposition within 10 days of this order. Trial is continued to ___________.

Defendant’s request for sanctions is DENIED.

Legal Standard

Except as otherwise provided, “any¿party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.”¿ (Code Civ. Proc., § 2024.020(a).)¿ “[A]¿continuance¿or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to¿CCP¿section 2024.050.¿ (Code Civ. Proc., § 2024.020(b);¿Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568.)¿¿CCP¿section 2024.050 provides that “[o]n¿motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.”¿ (Code Civ. Proc., § 2024.050(a).)¿

The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿ (Code Civ. Proc., § 2024.050(a), (b).)¿ In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including:¿¿

1.         The necessity and the reasons for the discovery.¿¿

2.         The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿¿

3.         Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿¿

4.         The length of time that has elapsed between any¿date¿previously set, and the date presently set, for the trial of the action.¿¿

(Code Civ. Proc., § 2024.050(b).)¿¿

A motion to reopen discovery pursuant to¿CCP¿section 2024.050 must be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.¿ (Code Civ. Proc., § 2024.050(a).)¿

Discussion

A.     Motion to Reopen Discovery

I.          Necessity and Reasons for the Discovery and Plaintiff’s Diligence 

Defendant moves to reopen expert discovery, arguing that despite duly noticing the deposition of Dr. Bakhtiar Moussazadeh two separate times, making multiple attempts to set the deposition within the expert discovery cut off, and making multiple attempts to work with Plaintiff’s counsel to resolve this matter informally, Defendant has been unable to obtain the deposition of Dr. Moussazadeh through no fault of her own. This deposition is directly relevant to the matters at issue in this case as Plaintiff is claiming Dr. Moussazadeh provided more than $60,000 in treatment related to her claimed injuries.

Defendant has demonstrated that deposing Plaintiff’s expert is necessary for this litigation.

As to diligence, Defendant argues that upon receiving Plaintiff’s expert designation, which listed Dr. Moussazadeh as a non- retained expert, Defendant set Dr. Moussazadeh’s deposition for October 21, 2022, a date well within the expert discovery cut off. Plaintiff’s counsel then set Defendant’s experts’ deposition on dates after the cut-off, reasonably leading Defense Counsel to assume that Plaintiff’s counsel had agreed to mutually waive the discovery cut off, as is commonly done in similar cases. Defendant argues she worked diligently to reset the deposition as soon as possible once they were notified that Dr. Moussazadeh was unavailable. Another date— November 4, 2022—was then reserved to allow the deposition to proceed before the cut-off. However, counsel advised they were not available, that Defense counsel could not contact Dr. Moussazadeh’s office, and that Plaintiff’s counsel would obtain dates, but no such dates were provided. Defense Counsel then re-set the deposition for a third time for the next available date of November 11, 2022, which also did not proceed.

Plaintiff argues in opposition that Defendant had two years to depose Dr. Moussazadeh. Further, Plaintiff argues that Defendant's counsel is the only one responsible for Dr. Moussazadeh's cancellation of his deposition on November 10, 2022, because Defendant did not pay Dr. Moussazadeh's deposition fee, and Dr. Moussazadeh was not going to appear for his deposition if he was not going to be paid prior to his deposition of November 11, 2022.

The Court finds that Defendant was diligent in seeking to depose Plaintiff’s expert, as Defendant states that upon receiving Plaintiff’s expert designation, she attempted to depose Dr. Moussazadeh. While Plaintiff argues Defendant had two years to depose Dr. Moussazadeh, Defendant felt it was necessary once the expert designation was made, which is reasonable. Moreover, while Plaintiff argues that Defendant was the sole reason the deposition did not proceed because she did not pay Dr. Moussazadeh’s fee, it is undisputed that Defendant made multiple attempts at deposing Dr. Moussazadeh even before November 11, 2022. This does not show a lack of diligence. Further, Plaintiff even admits that she objected to the deposition set for November 11, 2022 because it was a holiday. Defendant has not filed a reply to explain why the deposition fee was not paid, but it appears that Defendant was hesitant to pay when Plaintiff objected and stated she would not appear for deposition on that date.

In sum, the court finds that the necessity and reasons for the discovery weigh in favor of continuing the expert discovery cutoff date, and that there was no lack of diligence on the part of Defendant in seeking the subject discovery, which further weighs in favor of continuing the expert discovery cutoff date.

II.        The Likelihood that Permitting the Discovery Will Prevent the Case from Going to Trial on the Date Set, Prejudice, and the Length of Time Between the Date Previously Set for Trial and the Current Trial Date 

Defendant argues that the deposition will result in no prejudice to Plaintiff. Depositions of non- retained experts are common practice and the only reason this deposition did not proceed prior to the cut off was due to Defendant’s reliance on Plaintiff Counsel’s promise to obtain alternate dates which were never provided. Plaintiff’s counsel was also provided multiple opportunities to avoid any delay in trial by either providing dates when they said they would, or agreeing to re-set the deposition on a mutually agreeable date and time. They have inexplicably declined to do so.

Accordingly, the court finds that this factor favors continuing the relevant discovery cutoff dates.   

The final factor is the length of time that has elapsed between any date previously set and the date presently set for the trial of the action.  (Code Civ. Proc., § 2024.050, subd. (b)(4).)  The parties do not raise arguments concerning this factor and the court therefore does not find that it weighs for or against continuing the discovery cutoff date.  

As such, because the majority of the factors weigh in favor of continuing the expert discovery cutoff date, Defendant’s motion is granted but only as it relates to Dr. Moussazadeh’s deposition.

B.     Motion to Compel Deposition of Dr. Moussazadeh and Request for Sanctions

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

Defendant noticed the deposition of Plaintiff’s non-retained expert Bakhtiar Moussazadeh, M.D. on October 6, 2022, setting the deposition for October 21, 2022. (Exh. B.) When defense counsel was notified that Dr. Moussazadeh would be unavailable for deposition on October 21, 2022, Defendant reserved the next mutually available date of November 4, 2022 and contacted Plaintiff’s counsel regarding that date. Defense counsel was told that they could not speak to Dr. Moussazadeh’s office and that Plaintiff’s counsel was not available on November 4. Plaintiff’s counsel further informed Defense counsel that they would obtain deposition dates from Dr. Moussazadeh and provide them to Defense Counsel. No dates were ever provided. Defense counsel then obtained Dr. Moussazadeh’s next mutually available date of November 11, 2022 and served a new notice of deposition and deposition subpoena to both Dr. Moussazadeh and Plaintiff’s counsel on October 31, 2022. (Exh. E.) On November 8, 2022, Plaintiff’s counsel served an untimely objection to the deposition of Dr. Moussazadeh and indicated for the first time that the expert discovery cut off had not been waived. (Exh. G.) After multiple meet and confer emails to Plaintiff’s counsel regarding the deposition, Defense counsel was advised by Plaintiff’s counsel on November 9, 2022 that he would contact Dr. Moussazadeh and tell him not to appear for the deposition because Plaintiff’s counsel was unavailable and had objected. On November 10, 2020, less than 24 hours before the deposition, Dr. Moussazadeh’s office advised that they were cancelling the deposition without explanation.

In opposition, Plaintiff argues that November 11, 2022 was Veterans day, a federal holiday observed by the Courts, and recognized by Plaintiff’s counsel’s office. On November 4, 2022, Plaintiff’s counsel’s office reached out to Defense counsel's office advising them that Plaintiff’s counsel’s office is closed on November 11, 2022, in observance of Veterans Day. On November 8, 2022, Plaintiff’s counsel served an objection to the deposition of Dr. Moussazadeh advising Defense counsel's office that the expert discovery cut off had not been waived and further stating that they were unavailable for the November 11, 2022 deposition. Defense counsel advised Plaintiff’s counsel that the deposition of Dr. Moussazadeh would remain on calendar for November 11, 2022, and that if Plaintiff’s counsel did not appear they would take a certificate of non-appearance.  After learning of Defendant’s position, Plaintiff’s counsel was going to appear for deposition on the holiday, but learned from Dr. Moussazadeh’s office that defense counsel failed to pay his deposition fee, and Dr. Moussazadeh was not going to appear. After canceling his deposition, Defense counsel was provided alternative dates of November 18, 2022, November 29, 2022, and December 1, 2022, by Dr. Moussazadeh's office and his fee schedule for Dr. Moussazadeh deposition fees were also attached requesting payment when they secured the alternative date.

The Court finds Plaintiff and Dr. Moussazadeh were properly served with deposition notices. As discovery is being reopened, Plaintiff’s objection on the basis that discovery had closed is not a valid objection any longer. Moreover, Plaintiff’s objection that he was unavailable is not valid either, as Defendant has made multiple attempts to take Dr. Moussazadeh’s deposition to no avail. Additionally, as discussed above, while Plaintiff argues that Defendant did not pay Dr. Moussazadeh’s deposition fee, this was after Plaintiff’s counsel represented to Defendant that he would not appear for deposition. As a result of this representation, it appears reasonable that Defendant did not pay the deposition fee. Thus, as Plaintiff was properly served with the deposition notices, and did not validly object, the motions to compel Plaintiff’s expert to appear for deposition is GRANTED.  Plaintiff is ordered to produce Dr. Moussazadeh for deposition within 10 days of this order.

As to sanctions, Plaintiff argues monetary sanctions should be denied because they provided alternative dates and because they did not appear for deposition because it was a court holiday.

The Court finds that imposing sanctions against Plaintiff under the circumstances would be unjust as November 11 was a court holiday, and because it appears both parties held their own position regarding whether the November 11 deposition would proceed and a miscommunication regarding the payment of the deposition fee.

C.      Motion to Continue Trial

Legal Standard

California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for “good cause,” which includes (without limitation): (1) unavailability of trial counsel or witnesses due to “death, illness, or other excusable circumstances”; (2) the addition of a new party depriving the new party (or other parties) from conducting discovery and preparing for trial; (3) “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”; or (4) “[a] significant, unanticipated change in the status of the case” preventing it from being ready for trial.  (Id., Rule 3.1332(c).)   

Other relevant considerations may include: “(1) The proximity of the trial date; [¶] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [¶] (3) The length of the continuance requested; [¶] (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; [¶] (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [¶] (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; [¶] (7) The court's calendar and the impact of granting a continuance on other pending trials; [¶] (8) Whether trial counsel is engaged in another trial; [¶] (9) Whether all parties have stipulated to a continuance; [¶] (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and [¶] (11) Any other fact or circumstance relevant to the fair determination of the motion or application.”  (Id., Rule 3.1332(d).) 

Code of Civil Procedure section 2024.050 allows a court to grant leave to complete discovery proceedings.  In doing so, a court shall consider matters relevant to the leave requested, including, but not limited to: (1) the necessity of the discovery, (2) the diligence in seeking the discovery or discovery motion, (3) the likelihood of interference with the trial calendar or prejudice to a party, and (4) the length of time that has elapsed between previous trial dates.  (Code Civ. Proc. § 2024.050.) 

Discussion

Defendant also moves to continue trial, to allow this motion to be heard and Dr. Moussazadeh’s deposition to be completed. Had the deposition of Dr. Moussazadeh proceeded on November 11, 2022 as noticed, Defendant would have reported ready for trial as scheduled. This motion was brought immediately after Dr. Moussazadeh’s duly noticed deposition did not proceed and after Defense Counsel worked diligently for several days to informally resolve the issue with Plaintiff’s counsel. This case is relatively young and was filed on January 13, 2021. There was one prior trial continuance of only 4 months to allow a defense medical examination to be rescheduled after Plaintiff unexpectedly underwent a total shoulder replacement surgery. Defendant argues that the prejudice to Plaintiff of having the deposition take place and of a very brief trial continuance is minimal while the prejudice Defendant would experience if she were denied the opportunity to complete the deposition would be substantial and unjust. Dr. Moussazadeh’s treatment accounts for more than $60,000 of Plaintiff’s claimed medical special damages and comprises all of the lumbar spine treatment received. Without his deposition, Defendant will be unjustly deprived of the ability to meaningfully cross examine him regarding his treatment and the related costs.

Plaintiff argues there is no good cause to continue trial. Plaintiff’s counsel has completed discovery, expert discovery, joint trial documents, motions in limine and have ensured their experts to be available to testify at trial. Defendant is also ready for trial. A deposition of non-retained expert should not hold up the trial that Plaintiff has been waiting for. Defendant still has time to complete the deposition of Dr. Moussazadeh and has time to prepare and adequately cross examine him if needed. Plaintiff’s incident is an admitted liability case in which she sustained massive injuries. Plaintiff has been patiently waiting for her day in Court.

The Court finds that there is good cause for continuing the trial date as Defendant still needs to conduct the deposition of Dr. Moussazadeh, which may take up to 10 days after the hearing on this motion, leaving only a few weeks for Defendant to prepare for the February 8 trial after completing this deposition. Further, the Court finds that Plaintiff has not explained how a brief trial continuance would prejudice her ability to have a trial. Plaintiff will still have her day in court. As such, trial is continued to _________.

Conclusion

Based on the foregoing, Defendant’s motion to reopen discovery, compel the deposition of Dr. Moussazadeh, and continue trial is GRANTED. Plaintiff is ordered to produce Dr. Moussazadeh for deposition within 10 days of this order. 

Pursuant to the request of moving party, the Non-Jury Trial scheduled for 02/08/2023 is
continued to 10/30/2023 at 08:30 AM in Department 29 at Spring Street Courthouse.

Pursuant to the request of moving party, the Final Status Conference scheduled for 02/01/2023 is
continued to 10/16/2023 at 10:00 AM in Department 29 at Spring Street Courthouse.

Defendant’s request for sanctions is DENIED.

Moving party is ordered to give notice.