Tentative Rulings

Case Number: ****9873    Hearing Date: September 18, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiff Wilbert Saunders (“Plaintiff”) filed this action against Defendant Tony Joey Cruz, Jr. (“Defendant”), among others, following a motor vehicle collision. Plaintiff previously moved for preference under Code of Civil Procedure section 36(a), which the Court denied without prejudice. Now, Defendant moves to compel Plaintiff to appear for a second deposition, which Plaintiff opposes.

A party may seek leave to take a second deposition for good cause, per Code of Civil Procedure section 2025.610(b). Defendant first deposed Plaintiff on October 8, 2018, and argues that Plaintiff has had two additional surgeries. However, during his initial deposition, Plaintiff testified that he planned to undergo these surgeries:

Q: I see from Dr. Gravori’s notes that he’s recommending that you have surgery in your neck and your back. Have you actually scheduled the surgery?

A: I’m hoping we get it done by early November.

Q: And you’re going to start with the beck surgery as Dr. Gravori recommends, and then the lumbar surgery later?

A: Yes.

Q: Are you going to have Dr. Gravori do both surgeries?

A: Of course.

(Declaration of Daniel Ghyczy, Exh. #2, p.79.)

The Court finds no good cause to order a second live deposition. There was no unfair surprise, as Defendant’s counsel clearly had access to Dr. Gravori’s notes and was aware of the upcoming surgeries. It also is clear that Defendant’s counsel was aware at the time of the deposition that Plaintiff had not yet undergone those surgeries. Yet, Defendant’s counsel went forward with the deposition rather than wait until after the surgeries. Defendant’s counsel argues that he could not have done so based upon the original trial date of April 17, 2019. If Defendant’s counsel wished to ask Plaintiff questions following his upcoming surgeries, he could have sought to continue the trial date in order to allow a complete record before trial.

Also, Defendant has had ample opportunity to conduct discovery in this case. Indeed, the case is approximately three years old, and the Court ordered a second physical examination following Plaintiff’s surgeries. Finally, the proposed topics of inquiry do not necessitate a live deposition. Defendant can inquire about “the scope and effects of the injuries” following the surgeries by way of written deposition.

CONCLUSION AND ORDER Defendant’s motion to compel Plaintiff’s deposition is granted in part and denied in part. The Court denies the motion with respect to a live deposition. The Court grants the motion insofar as Defendant seeks a written deposition. Defendant may ask ten (10) questions of Plaintiff in the form of a written deposition. The Court denies each party’s request for sanctions. Defendant shall provide notice and file proof of such with the Court.

DATED: September 18, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: ****9873    Hearing Date: November 20, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Plaintiff Wilbert Saunders (“Plaintiff”) filed this action against Defendant Tony Joey Cruz, Jr. (“Defendant”) following a motor vehicle collision. Plaintiff moves the Court for an order granting trial preference per Code of Civil Procedure section 36, subdivision (a), which Defendant opposes. Per Code of Civil Procedure section 36, subdivision (a), “A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings: [¶] (1) The party has a substantial interest in the action as a whole. [¶] (2) The health of the party is such that a preference is necessary to prevent prejudicing the party's interest in the litigation.” (Code Civ. Proc., ; 36, subd. (a).) If the court grants the motion for trial preference, the court must set the matter for trial not more than 120 days from the date of the hearing on the motion for preference. (Code Civ. Proc., ; 36, subd. (f).) The Court finds good cause to grant this motion to grant preference, given Plaintiff’s age and health conditions, based upon the declarations of Marc Cohen, M.D. and Devin K. Binder, M.D. The Court also notes that this case has been pending since October 17, 2017—over three years—affording Defendant ample time to prepare for trial.

Defendant argues that the motion is moot because the trial is set for March 18, 2021. The Court disagrees. Plaintiff still would be entitled to preference to ensure that this trial date is not continued indefinitely based upon any motion by Defendant (or the Court’s own motion). Moreover, the Court cannot set a preference case for trial a mere three days before the deadline, so Plaintiff’s motion effectively seeks to advance the trial date.

CONCLUSION AND ORDER

This case must proceed to trial on or before Monday, March 22, 2021. Therefore, the Court sets the following dates:

Final Status Conference: February 18, 2021, at 10:00 a.m.

Trial: March 4, 2021, at 8:30 a.m.

The discovery and motions cut-off shall be based on the new trial date. Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 20, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court