Judge Wesley L. Hsu, Case 19STCV33906 2023-03-29 Tentative Ruling

3. Plaintiff Fadi Almazahreh’s Ex Parte Application to Compel Thomas Fugger, Jr., P.E.’s

Plaintiff Fadi Almazahreh (“Plaintiff”) alleges that he sustained injuries in a February 20, 2019, motor vehicle accident.

On September 24, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants Florentino Rico (“Rico”), Altman Specialty Plants, LLC (“Altman”) (collectively, “Defendants”) and Does 1-20 for:

On September 11, 2020, this case was transferred from Department 32 of the Personal Injury Court to this instant department.

On October 29, 2021, the court granted Plaintiff’s motion for summary adjudication of Defendants’ eighteenth affirmative defense.

1. Amended Motion to Exclude Epperson or Compel Deposition and Appoint Discovery Referee

“If a witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain all of the following: . . . (4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial.” (Code Civ. Proc., § 2034.260, subd. (c).)

“Except as provided in Section 2034.310 and in Article 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: . . . (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).” (Code Civ. Proc., § 2034.300.)

Defendants move the court for an order to (1) exclude Dr. Randall C. Epperson (“Epperson”), Plaintiff’s retained neuropsychology expert, from testifying at trial or, in the alternative, compelling Epperson to attend a second deposition mutually agreed to by the parties, (2) appoint a discovery referee to resolve all remaining and future expert discovery disputes and attend all expert depositions; and to (3) issue sanctions against Plaintiff’s counsel of record in the amount of $6,500.00.

At the outset, the court notes that on March 3, 2023, Plaintiff purported to file an “amended opposition” and that on March 22, 2023, Defendants filed a “supplemental reply.” The court declines to consider either of these filings, both of which were filed after the matter had already been fully briefed.

Next, the court notes that Judge Peter Hernandez’s December 7, 2022, minute order provided, in relevant part, that “[t]he new discovery cut-off for expert depositions only is 01/17/2023.” The court interprets Judge Hernandez’s subsequent continuances of the hearing on this instant motion and Motions #2 and #3 (as well as his January 23, 2023 and January 27, 2023 rulings) as necessarily continuing the January 17, 2023, discovery cut-off date, such that all of the motions may be entertained on the merits.

The parties’ dispute with respect to Epperson is that, during Epperson’s December 1, 2022, deposition, Defendants’ counsel learned that Epperson had not been provided with a copy of Plaintiff’s high school transcripts or STAR testing results. (Marchese Decl., ¶ 8, Exh. C). Plaintiff’s counsel suspended the deposition on the belief that his office did not have the aforementioned records. (Id., ¶ 11).[1] Defendants received the aforementioned records via a business records subpoena issued at some point during this litigation to Charter Oak High School. (Id., ¶ 5).

Plaintiff complains that on July 12, 2021, Defendants subpoenaed Plaintiff’s school records from Charter Oak Unified School District; in doing so, Defendants used the subpoena service Nationwide Legal, LLC (“Nationwide”). (Park Decl., ¶ 1, Exh. 1.) On December 30, 2021, Plaintiff contacted Nationwide and was advised that “[r]ecords ha[d] NOT been received” as to that order. (Id., ¶ 2, Exh. 2.). On March 21, 2022, Defendants served a second subpoena for Plaintiff’s school records from Charter Oak Unified School District but failed to serve the subpoena or a notice of consumer on Plaintiff or Plaintiff’s counsel, such that Plaintiff was unaware of the subpoena until after Epperson’s deposition. (Park Decl., ¶ 3, Exh. 3.) Plaintiff’s counsel apparently discovered this second subpoena and records within Defendants’ retained expert Dr. Harwood’s file, which was produced on December 13, 2022. (Opp., 4:19-20).

Defendants, in turn, assert that any defect with the March 2022 subpoena was not caused by Defendants and was unknown to Defendants. Nationwide Process Manager Arthur Chale (“Chale”) attests that Defendants’ counsel’s firm Chapman Glucksman, APC (“CG”) placed an order with Nationwide to serve a Deposition Subpoena for Production of Business Records and Notice to Consumer (“Subpoena”) on Charter Oak Unified School District for Plaintiff’s educational records for the years 2010-2014, that Nationwide served the Subpoena on Charter Oak Unified School District on March 22, 2022, that, due to an error on behalf of Nationwide’s service of process department, Nationwide failed to serve the Subpoena (including the Notice to Consumer) on Plaintiff’s counsel, that on or about September 14, 2022, Nationwide received 2 pages of Plaintiff’s educational records from Charter Oak Unified School District in response to the Subpoena, that Nationwide thereafter notified CG that the records had been produced and were available for download, that upon information and belief, CG had no knowledge that Nationwide failed to serve the Subpoena on Plaintiff’s counsel until approximately December 1, 2022 and that CG did not request, direct, instruct, or otherwise order Nationwide not to serve the Subpoena (including the Notice to Consumer) on Plaintiff’s counsel. (Marchese Decl., ¶ 2, Exh. A, ¶¶ 2-5).

Defendants further assert that Plaintiff, at the very least, received the aforementioned documents on November 4, 2022, in conjunction with Defendants’ Request for Admissions served on Plaintiff that date. (Marchese Decl., ¶ 6, Exhs. A & B.) However, whether or not the aforementioned documents were attached to this discovery does not excuse Defendants’ failure to comply with Code of Civil Procedure § 1985.3. Further, Epperson was deposed on December 1, 2022, before Plaintiff’s responses to the Requests for Admissions were due.

Under the circumstances, Plaintiffs’ request for an order precluding Epperson from testifying at trial is denied. The court grants Plaintiffs’ alternative request to compel Epperson to attend a second deposition; in doing so, the court will permit Defendants to ask Epperson questions about topics previously discussed during the first deposition to the extent Epperson’s opinions have changed based upon his review of Plaintiff’s high school transcripts and/or STAR testing results.

Plaintiff’s request for a discovery referee is denied as unwarranted, as is Plaintiff’s request for monetary sanctions.

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 20160.040.” (Code Civ. Proc., § 2025.420, subd. (a).)

“The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: (1) That the deposition not be taken at all. (2) That the deposition be taken at a different time. (3) That a video recording of the deposition testimony of a treating or consulting physician or of any expert witness, intended for possible use at trial under subdivision (d) of Section 2025.620, be postponed until the moving party has had an adequate opportunity to prepare, by discovery deposition of the deponent, or other means, for cross-examination. (4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260. (5) That the deposition be taken only on certain specified terms and conditions. (6) That the deponent's testimony be taken by written, instead of oral, examination. (7) That the method of discovery be interrogatories to a party instead of an oral deposition. (8) That the testimony be recorded in a manner different from that specified in the deposition notice. (9) That certain matters not be inquired into. (10) That the scope of the examination be limited to certain matters. (11) That all or certain of the writings or tangible things designated in the deposition notice not be produced, inspected, copies, tested, or sampled, or that conditions be set for the production of electronically stored information designated in the deposition notice. (12) That designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition. (13) That a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only to specified persons or only in a specified way. (14) That the parties simultaneously file specified documents enclosed in sealed envelopes to be opened as directed by the court. (15) That the deposition be sealed and thereafter opened only on order of the court. (16) That examination of the deponent be terminated. If an order terminates the examination, the deposition shall not thereafter be resumed, except on order of the court.” (Code Civ. Proc., § 2025.420, subd. (b).)

“If the motion for a protective order is denied in whole or in part, the court may order that the deponent provide or permit the discovery against which protection was sought on those terms and conditions that are just.” (Code Civ. Proc., § 2025.420, subd. (g).)

“The deposition officer may not suspend the taking of testimony without the stipulation of all parties present unless any party attending the deposition, including the deponent, demands that the deposition officer suspend taking the testimony to enable that party or deponent to move for a protective order under Section 2025.420 on the ground that the examination is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses that deponent or party.” (Code Civ. Proc., § 2025.470).

Plaintiff moves the court for a protective order to preclude Defendants from further deposing Epperson and to strike all testimony at Epperson’s first deposition regarding Plaintiff’s school records. Plaintiff also seeks sanctions of $1,050 against Defendants and their counsel of record.

Plaintiffs’ request for a protective order precluding Epperson’s second deposition is denied, for the reasons set forth in the analysis on Motion #1. The court views its ruling on Motion #1 as an adequate remedy for the errors in service of the school records at issue here.

“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).

“If a demand for an exchange of information concerning expert trial witnesses includes a demand for production of reports and writings as described in subdivision (c) of Section 2034.210, all parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings, if any, made by any designated expert described in subdivision (b) of Section 2034.210.” (Code Civ. Proc., § 2034.270).

Plaintiff moves the court for an order compelling Thomas Fugger, Jr., P.E.’s entire expert file, including all calculations, animations and raw data.

On December 7, 2022, Plaintiff noticed the deposition of Fugger, Defendants’ retained accident reconstruction expert for January 4, 2023. (Park Decl., ¶ 2, Exh. 1.) The notice sought, inter alia, “[t]he entire original file of THOMAS F. FUGGER, JR., P.E., in connection with his work on this case,” “[a]ny and all reports, both in printed form and native format, prepared by THOMAS F. FUGGER, JR., P.E. in connection with this case” and “[a]ny and all original demonstrative materials, in both printed form and native format, prepared by THOMAS F. FUGGER, JR., P.E. which are intended for use during testimony at trial. This request seeks all such demonstrative material, including any and all iterations of that demonstrative material.” (Id.) The deposition occurred on January 4, 2023. (Id.) Before Fugger’s deposition, Defendants produced one video simulation, created by DK Global, Inc. of how the incident occurred (“Third Simulation”). (Exh. 2.) Also before Fugger’s deposition, Plaintiff’s counsel found a link buried in e-mails within Fugger’s expert file, which led to a link with a downloadable version of the simulation that was not produced by Defendants (“Second Simulation”). (Id., ¶ 4.) Fugger also testified that there was an even earlier version of this simulation that he watched (“First Simulation”). (Id., ¶ 3, Exh. 3, 50:2-11 and 50:23-51:6.) Defendants never produced the First Simulation. The parties agreed to a second session of Fuggers’s deposition to take place on January 14, 2023; however, Defendants failed to produce Fugger’s complete file, including all versions of the animation. (Id., ¶ 4, Exh. 4.)

[1] The deposition transcript reflects that Plaintiff’s counsel suspended the deposition after unsuccessfully requesting Defendants’ counsel for the records. (Park Decl., ¶ 4, Exh. 4, 114:5-19.)