Tentative Rulings

Case Number: BC673951    Hearing Date: December 09, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Defendant Magic Mountain LLC (“Defendant”) moves to preclude Plaintiff Tessa Smith (“Plaintiff”) from calling her expert Edward M. Pribonic (“Pribonic”) as a witness at trial. A court must exclude the expert opinion of any expert if the party offering that expert fails to make the expert available for deposition. (Code Civ. Proc., § 2034.300, subd. (d).)

In its order of September 3, 2020, the Court set the trial date in this matter for July 29, 2021. The Court noted that discovery is closed, except for completion of expert depositions. (See September 3, 2020 Minute Order.) With a trial date of July 29, 2021, the parties have until July 14, 2021 to complete Pribonic’s deposition. (Code Civ. Proc., § 2024.030.) Accordingly, the motion is premature.

Plaintiff’s counsel states that his expert cannot participate in the deposition due to the pandemic. The Court does not understand why the deposition cannot be conducted remotely (like so many other depositions during the pandemic). The Court orders the parties to meet-and-confer on this issue.

Defendant also moves to exclude Pribonic’s testimony as cumulative. The Court may exclude cumulative testimony on the basis that “the probative value of the . . . testimony [is] outweighed by the fact the testimony would consume an undue amount of time.” (Cubic Corp. v. Marty (1986) 185 Cal.App.3d 438, 455.) The testimony of an expert is not cumulative merely because other experts will testify on the same subject. (See Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 663, overruled on other grounds in Coito v. Superior Court (2012) 54 Cal.4th 480.) As Defendant has not deposed Pribonic, the Court cannot determine if Pribonic’s testimony is duplicative of the testimony of Plaintiff’s other experts. Moreover, whether testimony is cumulative should be resolved by the trial judge by way of a motion in limine.

Based upon the foregoing, Defendant’s motion is denied without prejudice. Defendant shall provide notice and file proof of such with the Court. The Court orders the parties to meet-and-confer in an effort to resolve these disputes, as the parties should not require Court intervention to resolve such straightforward issues.

DATED: December 9, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC673951    Hearing Date: March 10, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiff Tessa Smith (“Plaintiff”) served Defendant Magic Mountain, LLC (“Defendant”) with supplemental interrogatories seeking the identification of all sub rosa materials. Defendant opposes the motion on two grounds. First, Defendant argues that Plaintiff did not schedule an informal discovery conference, as required. Second, Defendant represents: “Defendant MAGIC MOUNTAIN, LLC does not intend to use any of the subrosa videos at trial in any form.” (Defendant’s Opposition, at p.2:8-9.)

The work product of an attorney, other than a writing described in subdivision (a), is not discoverable unless the Court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice, per Code of Civil Procedure section 2018.030(b). Simply because the subject matter sought to be discovered is the work product of an attorney does not make the subject matter privileged. (Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177-178.) In other words, attorney work product is not absolutely privileged.  (Id. at 178.) 

If Defendant intended to use the videos at trial, Plaintiff would have a strong argument in favor of production because she could not otherwise obtain the requested information from other sources, and the mere fact that Plaintiff knows of her own physical condition would not be enough to eliminate unfair surprise to Plaintiff at trial. In this case, however, Defendant represents that it “does not intend to use any of the subrosa videos at trial in any form.”

Based upon Defendant’s representation, the Court orders that the sub rosa videos shall be excluded from trial and may not be introduced for any purpose, including impeachment. Accordingly, Plaintiff’s motion is denied. Plaintiff shall provide notice and file proof of such with the Court.

DATED: March 10, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC673951    Hearing Date: January 21, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Defendant Magic Mountain, LLC (“Defendant”) moves to bifurcate the trial of this case into two phases: liability; and damages. Plaintiff Tessa Smith (“Plaintiff”) opposes the motion. Under Code of Civil Procedure section 598, “The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby . . . make an order . . . that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case[.]”  (Code Civ. Proc., § 598.)

Defendant has failed to demonstrate that trial of liability separately from damages would result in efficiencies. Instead, it is likely that it would result in duplication of effort.  Plaintiff contends her hand became stuck in a gate at an amusement park that Defendant owned and operated. It is logical and efficient for Plaintiff to present evidence on how and why Defendant is liable for Plaintiff’s injuries at the same time as Plaintiff presents evidence on the injuries that resulted from the underlying accident. Also, the evidence on damages will not be so voluminous compared to evidence on liability as to justify bifurcation.

CONCLUSION AND ORDER

Defendant’s motion for bifurcation is denied. Defendant properly sought a bifurcation order in advance of the trial date. However, a trial court may also “on its own motion . . . make such an order at any time.” (Code Civ. Proc., § 598.) This order is without prejudice to Defendant requesting that the trial court consider bifurcation on its own motion. Defendant shall provide notice and file proof of such with the Court.

DATED: January 21, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court