Judge: Stephen P. Pfahler, Case: 21CHCV00467, Date: 2023-10-13 Tentative Ruling

Case Number: 21CHCV00467    Hearing Date: December 12, 2023    Dept: F49

Dept. F-49

Date: 12-12-23

Case: 21CHCV00467

Trial Date: 1-16-24 c/f 10-16-23

DEPOSITIONS

MOVING PARTY: Defendants, Prohealth Professional Services, et al.

RESPONDING PARTY: Plaintiff, Vanessa Silvas

RELIEF REQUESTED

Motion to Compel Expert Depositions

SUMMARY OF ACTION

On June 22, 2021, Plaintiff Vanessa Silvas filed a 15 cause of action complaint for wage and hour claim, wrongful termination, and emotional distress. Defendants Prohealth Professional Services, et al. answered the complaint on October 12, 2021. On October 13, 2023, the court granted the motion for judgment on the pleadings brought by Prohealth Professional Services, Regency Surgery Center, Central Valley Occupational Medical Group, Inc., Pro-Health Valley Occupational Medical Group, Inc., and Sean Younai. On November 9, 2023, Plaintiff filed a first amended complaint.

RULING: Granted.

Plaintiff Vanessa Silvas moves to compel defense expert depositions of Dr. Paul Barkopoulos, M.D., and William Buckley. Plaintiff brings the motion upon prior efforts to schedule leading to no accord on a date(s).

Defendants in opposition maintain they produced all documents and offered October 5 and 6, 2023, respectively, but it was Plaintiff that cancelled the dates. Defendant next contends the motion was untimely filed and served. Defendant next challenges the motion as filed after the expert discovery cutoff, and no “good cause” to reopen expert discovery. Defendant also seeks to preclude discovery given the filed first amended complaint and lack of any responsive pleading, thereby declaring the action not at issue. Finally, Defendants challenge the necessity of the motion given Plaintiff’s own lack of diligence thereby necessitating the motion.

Plaintiff in reply challenge the opposition as arguing “irrelevant issues.” Plaintiff maintains a stipulation was in place to conclude the depositions, but a death in the family of one expert preventing the deposition going forward for one expert. Plaintiff followed the order of the court by filing the subject motion. Defendants never objected. Plaintiff now moves for leave to reopen the discovery cutoff.

The motion includes a separate statement with identified argument regarding “further responses” to requests for document production. Given the motion seeks to compel deposition sessions, rather than further answers or document production from a prior session, the court declines to address the content of the separate statement. Nothing in the motion otherwise indicates the necessity for addressing the subject matter.

The court also acknowledges the extensive histories presented by both sides, and argument in the opposition regarding concerns with the recently filed first amended complaint following the successful motion for judgment on the pleadings. The court therefore also declines to consider any potential challenges to the operative pleading, and adheres to its policy of allowing an aggrieved party to proceed with discovery regardless of any potential impending challenges in order to prepare the case for trial.

Given the nature of the dispute and the now second continued, yet impending trial date, the court directly addresses the core purpose of the motion. The November 16, 2023, filed and served motion was timely filed and served 16 court days, plus two additional days for electronic service. (Code Civ. Proc., § 1005, subd. (b).)

On the timing of the motion past the discovery cutoff based on the continuance of the trial date, neither party provided such a request. The court, as a matter of policy, will only extend trial discovery cutoffs with a new trial upon the request of a party. While the motion lacks a request for an extension until the reply, the court sua sponte extends the discovery cutoff for the sole purpose of completing the subject depositions and potential document production, if applicable.

A party may file a motion to compel deposition upon a non-appearance of the noticed party. “If, after service of a deposition notice, a party to the action … without having served a valid objection … fails to appear for examination, or to proceed with it … the party giving the notice may move for an order compelling the deponent's attendance and testimony…” (Code Civ. Proc., §2025.450, subd. (a).) It appears the parties cannot agree on a deposition date, but no attempted deposition and no show occurred. The court therefore declines to grant the motion on procedural grounds in that the court lacks a basis to make to make a finding of an actual non-appearance under the circumstances.

The court instead, and once again, orders the parties to meet and confer regarding the setting of depositions for the experts. Negotiations to occur within 5 calendar days of this order, with depositions to be completed within 25 calendar days of this order. The parties may decide on an in-person or remote method.  No further continuances of this deadline.

If the parties agree to dates, and any party fails to appear and/or produce documents, Plaintiff may take a notice of non-appearance and file a renewed motion compel for each and every non-appearing party. If Defendants fail to offer dates, or otherwise engage in any obstreperous activity to prevent the depositions, Plaintiff may unilaterally set dates and take notices of non-appearance, and again bring a renewed motion.

The court will consider requests for monetary sanctions against Defendants and counsel in the renewed motion(s), including costs incurred for the non-appearance(s), if applicable. A failure to produce documents may also constitute a basis of a future motion. Any continuance of the trial resulting from potential tactics in delaying the depositions may also constitute a factor for heavier sanctions.

The court declines to impose sanctions against either party at this time.

Trial remains set for January 16, 2024.

Plaintiff to give notice.