Tentative Rulings

Case Number: BC679305    Hearing Date: January 22, 2021    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiff Behrouz Alipanahi (“Plaintiff”) sued Defendant Gina Harris-Rey (“Defendant”) based on injuries Plaintiff sustained in a motor vehicle collision. Defendant moves to re-open discovery for the purpose of deposing Plaintiff’s expert, David Orlowski, Ph.D. (“Dr. Orlowski”). The motion is denied.

Trial is currently set for October 18, 2021, which the Court set in the order of September 15, 2020. However, the Court did not re-open discovery when it set the current trial date, except for the deposition of Plaintiff. Based on the former trial date of March 23, 2020, the fact discovery cutoff was February 24, 2020, and the expert discovery cutoff was March 9, 2020. (Code Civ. Proc., §§ 2024.020, subd. (a), 2024.030, 2016.060.)

In determining whether to re-open discovery, the Court must consider the necessity of and reasons for the additional discovery, the diligence or lack thereof by the party seeking to re-open discovery in attempting to complete discovery prior to the cutoff, whether permitting the discovery will prevent the case from going forward on the trial date or will otherwise prejudice any party, and any past continuances of the trial date. (See Code Civ. Proc., § 2024.050, subd. (b).)

Defendant relies on a declaration of her counsel, El Mahdi Young (“Young”). Young states that, on February 19, 2020, Defendant noticed Orlowski’s deposition for March 16, 2020. (See Declaration of Eh Mahdi Young, ¶ 4, Exhibit A.) Defendant did not appear on that date. (Ibid.) If Defendant noticed Orlowski’s deposition for March 16, 2020, then Defendant noticed David Orlowski’s deposition on a date after the expert discovery cut-off. (Code Civ. Proc., § 2024.030.) Defendant has not explained why Defendant could not have deposed Orlowski prior to the expert discovery cut-off. Accordingly, the motion is denied.

In addition, neither Plaintiff nor defendant has squarely addressed whether the Court specifically denied a request to re-open discovery other than for the deposition of Plaintiff at the September 15, 2020 hearing. To wit, did Defendant request to re-open discovery to depose David Orlowski at the September 15, 2020 hearing, and did the Court deny the request? If Defendant made the request and the Court denied it, then that will be a further basis to deny Defendant’s motion. But if Defendant did not make the request to re-open discovery to depose David Orlowski at the September 15, 2020 (considering the Court’s order to re-open discovery for the limited purpose of deposing Plaintiff), then Defendant has failed to sufficient state why her failure to do so is a basis to re-open discovery. The lack of a sufficient explanation would be another basis to deny Defendant’s motion.

Defendant is to give notice of this order, and file proof of service of such.

DATED: January 22, 2021 ___________________________

Michael E. Whitaker

Judge of the Superior Court

Case Number: BC679305    Hearing Date: February 26, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Background

Plaintiff Behrouz Alipanahi (“Plaintiff”) filed this action against Defendant Gina Harris-Rey (“Defendant”) following a motor vehicle collision. Defendant moves to compel Plaintiff to appear for deposition. The unopposed motion is granted.

LEGAL STANDARD

Defendant has the right to take Plaintiff’s deposition and is entitled to take Plaintiff’s depositions without leave of court.  (See Code Civ. Proc., § 2025.210, subd. (a).)  Per Code of Civil Procedure section 2025.450, if a party to the action fails to appear for deposition after service of a deposition notice and the party has not served a valid objection to that deposition notice, the party that noticed the deposition may move for an order to compel the deponent to attend and testify at deposition.  (Code Civ. Proc., §2025.450, subd. (a).)  

DISCUSSION

On May 15, 2018, Defendant noticed Plaintiff’s deposition for September 21, 2018. Defendant then re-noticed Plaintiff’s deposition for November 6, 2018, December 12, 2018, May 13, 2019, June 21, 2019, September 3, 2019, and February 26, 2020. (Declaration of Michael V. Madigan, ¶¶ 3-16.) To date, Plaintiff has not yet appeared for deposition. Accordingly, the motion to compel deposition is granted. 

Defendant requests sanctions against Plaintiff and counsel-of-record.  The Court concludes that sanctions are warranted per Code of Civil Procedure, section 2025.450, subdivision (g)(1).  The Court imposes sanctions against Plaintiff and his attorney of record, Michael J. Libman, in the amount of $443.15, which Defendant requests as her reasonable expenses in bringing this motion. The Court finds that this amount is fair and reasonable under the circumstances. 

CONCLUSION AND ORDER 

Defendant’s motion to compel Plaintiff’s deposition is granted. Plaintiff is to appear for deposition at the offices of Mark R. Weiner & Associates at 655 N. Central Avenue, Suite #1125 in Glendale on March 6, 2020 at 10 a.m. unless Defendant stipulates to a different date, time, and/or location. Plaintiff and his attorney of record, Michael J. Libman, jointly and severally, are ordered to pay sanctions in the amount of $443.15 to Defendant, by and through counsel, within 30 days of service of notice of this order. Defendant shall provide notice and file proof of such with the Court.

DATED: February 26, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court