Judge: Stephen I. Goorvitch, Case: 21STCV19537, Date: 2023-08-07 Tentative Ruling
Case Number: 21STCV19537 Hearing Date: November 7, 2023 Dept: 39
Michael
La Porta, et al. v. Beverly Hills Properties, et al.
Case
No. 21STCV19537
Order
#1 of 2
Motion
to Compel Appearance of Plaintiffs at Trial
Defendants
move to compel Plaintiffs to appear at trial personally, not remotely, per Code
of Civil Procedure sections 367.75 and 367.76 and California Rules of Court,
rule 3.672. The Court has discretion to
order Plaintiffs to appear personally at trial, per Code of Civil Procedure
section 367.76, subdivision (h)(2), and California Rules of Court, rule 3.672,
subdivision (d). Plaintiffs seek
authorization to appear remotely. The
Court previously continued the hearing because it had insufficient information
to rule on the motion. Now, the Court
denies both requests.
As
out-of-state residents, Plaintiffs are not required to appear and testify. (Code
Civ. Proc., § 1989.) In lieu of their
testimony, Plaintiffs’ counsel may introduce their deposition testimony. (Code Civ. Proc., § 2025.620, subds. (c)(1),
(c)(2)(D).) Therefore, it is Plaintiffs’
decision whether to provide live testimony versus relying on their deposition
testimony.
To the extent Plaintiffs
wish to testify, they must do so in-person, and the Court denies their request
to testify remotely. As an initial
matter, it generally is not feasible for parties to testify remotely during
jury trials, given the length of their testimony and the difficulty of doing
cross-examination remotely. In addition,
there are specific concerns in this case.
The Court does not believe Plaintiffs have the technical ability to
appear remotely (which, in the Court’s experience, is not uncommon for people who
do not work with computers and remote technology on a regular basis). Plaintiffs both claimed an inability to view
and review documents during their depositions.
(Deposition of Linda Toutant, filed on May 31, 2023, ¶ 7.) The second session of Beverlee La Porta’s
deposition started two-and-one-half hours late, which she attributed to
technical difficulties. (See id., Exh.
A, p. 242 & ¶ 7.)
In addition, the Court
has concerns with the integrity of the trial process based upon Plaintiffs’ conduct
during depositions. Michael La Porta testified from a series of
notes written by his wife. (Id., Exh. I,
pp. 6-7.)
Q: Is
there anyone in the room with you?
A: No.
Q: Do
you have any notes in front of you?
A: Let’s
see.
Q: Handwritten
notes or --
A: One.
. . . I have one.
Q: What
is it, sir?
A: It’s
-- It’s with the deal about -- that was written about talking about us, my
wife, defaming and all. That -- That’s
about it. Nothing more than that.
. . .
Q: Who wrote it?
A: My wife.
Q: So your wife gave you notes today to help
you with your testimony?
A: No.
Q: When did she write it?
A: Last night, I guess.
Q: What is its purpose?
A: The purpose was the things that has been
said and repeated about my wife, Beverlee, which was not correct, and that’s
all it was. Nothing more than that.
(Id., Exh. I, pp. 6-7.) Plaintiff Michael La Porta was not alone
during his deposition, and there were concerns that he was being coached:
Q: Did you ever have a test for mold in the
Sterling apartment?
A: Yes.
Q: Who just said “yes” that you were
looking at?
A: Someone just went by the door.
Q: And just happened to say “yes” and tell
you the answer?
A: No.
It was -- It was a question my son was asking his mother outside.
(Id., Exh. I, p. 37.) Even after this incident, there were concerns
that Michael La Porta was being coached.
(Id. Exh. I, pp. 95-96.) This culminated
in the court reporter transcribing someone (presumably Beverlee La Porta) coaching
her husband:
Q: . . . [W]as that couch in Rancho
Mirage? The white one?
A: The white one?
Q: Yes.
A: Was it -- say that again. Was that couch in Rancho Mirage the same one?
Q: Was your -- Was your white couch in
Rancho Mirage? Did you use it there?
Unidentified
Speaker: No.
A: No.
Q: I just heard your wife scream “no,” sir
in the background.
A: All right. I don’t recall.
(Id., Exh. I, pp. 116-117.)
This
alone is sufficient for the Court to deny Plaintiffs’ request to testify
remotely. The Court has genuine concerns
that Plaintiffs will have difficulty appearing remotely, which will waste the
jury’s time, and that there will be coaching and other acts of gamesmanship. Moreover, the Court finds that Defendant’s
counsel will not be able to do cross-examination under these circumstances, e.g.,
she will not be able to show Plaintiffs new and/or surprise exhibits for
purposes of impeachment; she will not be able to review and inquire about any notes
Plaintiffs are using for their testimony; etc.
Plaintiffs
argue that they lack financial resources to travel to California for
trial. However, Plaintiffs still provide
no documentation to that effect, e.g., bank records, etc. Plaintiffs also argue that they are not healthy
enough to travel to California for trial.
The Court has reviewed their medical documentation, as well as the
surveillance reports from a private investigator in which he observed them
moving without difficulty. (See
Declaration of Linda Toutant, filed on October 27, 2023, Exhs. F & G.) The Court need not resolve these discrepancies
because, as discussed, remote appearances simply are not feasible for the
reasons stated, and the parties can rely on their deposition testimony in lieu
of live testimony anyway.
Based
upon the foregoing, the Court orders as follows:
1. The Court denies Defendants’ motion to
require Plaintiffs to appear at trial, and denies Plaintiffs’ request to
testify remotely.
2. Plaintiffs are not required to attend the
trial, and the parties may rely on their deposition testimony in lieu of live
testimony. If Plaintiffs wish to
testify, they must appear live.
3. Defendants’ counsel shall provide
notice and file proof of such with the Court.
Order
#2 of 2
Motion
to Compel Appearance of Non-Retained Experts at Trial
Defendants
move to compel Plaintiffs’ non-retained experts to appear personally at trial,
not remotely, per Code of Civil Procedure sections 367.75 and 367.76 and
California Rules of Court, rule 3.672.
The Court has discretion to order Plaintiffs’ witnesses to appear
personally at trial, per Code of Civil Procedure section 367.76, subdivision
(h)(2), and California Rules of Court, rule 3.672, subdivision (d). Specifically, this motion relates to: (1)
Richard Gold, M.D., a cardiologist, (2) Chris Boesen, a mold inspector, and (3)
Stuart Salsbury, an appraiser.
The
Court orders as follows:
1. Defendants’ motion is granted in part
and denied in part.
2. The Court grants the motion with respect
to Dr. Gold and authorizes him to appear remotely. The Court finds that this testimony is
conducive to being presented remotely, and non-retained medical experts
generally have scheduling issues that make it difficult to appear
remotely. The health and safety of Dr.
Gold’s other patients supports the Court’s decision to permit him to testify
remotely (and to testify out-of-order if necessary).
3. The motion is denied with respect to Mr.
Boesen and Mr. Salsbury. The Court finds
no good cause to authorize remote appearance for these witnesses.
4. Defendants’ counsel shall provide
notice and file proof of such with the Court.