Judge: Steven A. Ellis, Case: 22STCV11798, Date: 2024-11-18 Tentative Ruling

Case Number: 22STCV11798    Hearing Date: November 18, 2024    Dept: 29

Wong v. City of Los Angeles
22STCV11798
Motion to Compel Deposition of Plaintiff’s Expert Witness Colin Smith

Tentative

The motion is granted.

Background

On April 7, 2022, Quang Wong (“Plaintiff”) filed a complaint against City of Los Angeles (“Defendant”) for dangerous condition of public property cause of action arising out of Plaintiff’s fall from his skateboard occurring on July 25, 2021.

On September 15, 2023, Defendant filed an answer and cross-complaint against Roes 1 to 10.

On October 17, 2024, Defendant filed this motion to compel the deposition of Plaintiff’s Expert Witness, Colin Smith. No opposition has been filed.

Legal Standard

“On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list. The procedures for taking oral and written depositions set forth in Chapters 9 (commencing with Section 2025.010), 10 (commencing with Section 2026.010), and 11 (commencing with Section 2028.010) apply to a deposition of a listed trial expert witness except as provided in this article.” (Code Civ. Proc. § 2034.410.)  

“An expert described in subdivision (b) of Section 2034.210 whose deposition is noticed pursuant to Section 2025.220 shall, no later than three business days before his or her deposition, produce any materials or category of materials, including any electronically stored information, called for by the deposition notice.” (Code Civ. Proc. § 2034.415.)  

“The service of a proper deposition notice accompanied by the tender of the expert witness fee described in Section 2034.430 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).)

Section 2025.410, subdivision (a), requires any party to serve a written objection at least three days before the deposition if the party contends that a deposition notice does not comply with the provisions of sections 2025.210 through 2025.280.

Section 2025.450, subdivision (a), provides:

“If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for¿inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.” 

Any such motion to compel must show good cause for the production of documents and, when a deponent has failed to appear, the motion must be accompanied “by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  (Id., subd. (b).)

Discussion

Plaintiff designated his expert witnesses on September 9, 2024. (Zuckerman Decl., ¶ 2 & Exh. A.) Defendant initially a notice for the deposition of Plaintiff’s expert witness Colin Smith on September 23.  (Id., ¶ 3 & Exh. B.)  Plaintiff served an objection on September 19, stating that the witness was not available.  (Id., ¶ 4 & Exh. C.) 

After an unsuccessful attempt to obtain alternative dates from Plaintiff, Defendant sent a new notice for the deposition of Mr. Smith on October 11.  (Id., ¶ 6 & Exh. E.)  Plaintiff served an untimely objection on October 9, stating that the witness was not available.  (Id., ¶ 7 & Exh. F.)

Defendant followed up but was not provided with alternate deposition dates.  (Id., ¶ 8 & Exh. G.)  Defendant tendered the required expert witness fee.  (Id., ¶ 9 & Exh. H.)

Defendant has shown that it noticed the deposition of Plaintiff’s expert, that it tendered the required fee, that Plaintiff failed to serve a timely objection, and that Plaintiff did not produce the expert witness for deposition.

The motion to compel is granted.

Conclusion

The Court GRANTS Defendant’s motion to compel.

The Court ORDERS Plaintiff to produce expert witness Colin Smith for deposition within 10 days of notice.