Case Number: BC495572 Hearing Date: May 08, 2014 Dept: 58

Judge Rolf M. Treu
Department 58
Hearing Date: Thursday, May 8, 2014
Calendar No.: 15
Case Name: Herzon v. Essentia Insurance Company, et al.
Case No.: BC495572
Motion: (1) Motion for Judgment on the Pleadings
(2) Motion to Preclude Expert Testimony by William Guentzler
(3) Motion to Compel Deposition of William Guentzler
Moving Party: Defendant Essentia Insurance Company
Responding Party: Plaintiff Darryl Herzon
Notice: OK

Tentative Ruling: (1) Motion for judgment on the pleadings is denied.

(2)-(3) Motion to compel deposition of William Guentzler is granted. No sanctions are awarded.

Background –
On 11/13/12, Plaintiff Darryl Herzon filed this action against Defendants Hagerty Insurance Agency, LLC and Palm Valley Insurance Services, Inc. arising out of the purchase of an insurance policy and handling of insurance policy claims. On 12/26/12, prior to any party’s appearance, Plaintiff filed a First Amended Complaint, naming Essentia Insurance Company as a defendant. On 2/4/13, the Court denied Plaintiff’s request for leave to file a Second Amended Complaint. On 3/20/13, the Court sustained a demurrer filed by Hagerty and Essentia (joined by Palm Valley) with leave to amend. On 4/4/13, Plaintiff filed a Second Amended Complaint. On 5/13/13, the Court sustained demurrers filed by Defendants, granting Plaintiff leave to amend in part, warning that it was doubtful that the Court would allow any further leave to amend in the future.

On 5/28/13, Plaintiff filed a Third Amended Complaint asserting causes of action for (1) breach of contract, (2) bad faith, (3) money had and received, and (4) violation of the Consumer Legal Remedies Act. On 7/10/13, the Court sustained demurrers by Hagerty and Palm Valley to the TAC without leave to amend; and sustained Essentia’s demurrer to the 3rd COA without leave to amend. The remaining claims in the TAC are the 1st, 2nd, and 4th COAs which are asserted against Essentia only. On 4/29/14, the Court denied Essentia’s motion for summary judgment/adjudication. Trial is set for 5/19/14; FSC for 5/8/14.

Motion for Judgment on the Pleadings –
Essentia argues that Plaintiff fails to state a claim for violation of the CLRA. See Civil Code § 1770(a). However, the crux of Essentia’s argument is based on whether the damages to Plaintiff’s vehicles are covered by Plaintiff’s insurance policies. As stated in the Court’s 7/10/13 (which is further supported by the Court’s 4/29/14 denial of Essentia’s motion for summary judgment), this is not properly addressed to the pleadings. See CCP § 438(d). Therefore, the motion for judgment on the pleadings is denied.

Motions re: Expert William Guentzler –
Essentia seeks to compel the deposition of Plaintiff’s expert witness Dr. William Guentzler, Ph.D., or to exclude his testimony.

Essentia submits that on 4/1/14, the parties exchanged expert witness disclosures wherein Plaintiff identified Dr. Guentzler but failed to provide his hourly and daily fee rates (see CCP § 2034.260(c)(5)). Borsutzki Decl. filed 5/5/14 ¶ 1, Ex. 1. Essentia’s counsel sent a meet and confer letter requesting this information on 4/4/14 (id. ¶ 2, Ex. 2), to which no response was made until an amended disclosure was filed on 4/25/15 and received by Essentia’s counsel on 4/30/14 (id. ¶ 2, Ex. 3). Essentia’s counsel requested Plaintiff to voluntarily produce Dr. Guentzler for deposition after the discovery cutoff date, which Plaintiff’s counsel declined. Id. ¶¶ 3-4, Exs. 4-6.

In opposition, Plaintiff argues that Essentia failed to properly and timely notice a deposition of Dr. Guentzler. See CCP §§ 2024.030, 2034.410. However, this fails to acknowledge that Plaintiff’s initial expert witness disclosure failed to include Dr. Guentzler’s hourly and daily fee rates for which a tender is required for a proper deposition notice (see CCP § 2034.460). Plaintiff’s counsel wholly fails to explain why this information was not included in the initial expert witness disclosure. Pursuant to CCP § 2034.300, the Court could exclude Dr. Guentzler’s testimony due to the unreasonable failure to properly include all the information required to list him as an expert and to make him available for deposition. Notably, Plaintiff fails to explain how the amended disclosure is proper to correct the omitted information especially where there is a procedure for doing so as provided in CCP § 2034.710 et seq., which Plaintiff did not use.

Nevertheless, the Court notes that Essentia’s primary request through these motions is to complete discovery by taking the deposition of Dr. Guentzler pursuant to CCP § 2024.050. Under the circumstances as explained above, the Court finds good cause to exercise its discretion to grant Essentia’s motion to compel the deposition of Dr. Guentzler. Therefore, the motion to compel the deposition of Dr. Guentzler is granted. The Court will discuss the details of the deposition with the parties at the hearing.

Sanctions –
In opposition to both motions, Plaintiff has requested sanctions pursuant to CCP § 128.5. However, this section only applies to actions or tactics that “arise from a complaint filed, or a proceeding initiated, on or before December 31, 1994.” CCP § 128.5(b)(1). This action was filed on 11/13/12. Therefore, CCP § 128.5 does not apply to this action. Additionally, the Court notes that pursuant to CCP § 2024.050(c), the Court could have awarded sanctions in favor of Essentia against Plaintiff. However, Essentia did not request sanctions, therefore, none are awarded.