2011-00115333-CU-OE

Boyce Jeffries vs. City of Galt

Nature of Proceeding: Motion to Allow Expert Depositions after Expert Discovery Cutoff

Filed By: Saad, Bianca N.

Plaintiff’s Motion for Leave to Depose Defendant’s Designated Experts after Discovery
Cutoff is DENIED.

This action is set for trial on Monday, October 28, 2013.

On Sept. 18, 2013, defendant City of Galt served its Disclosure of Expert Witnesses,
including, inter alia, non-retained experts Barry Weiss, Nancy Kaiser and Chris Hunt.

On Sept. 27, 2013, plaintiff served notices of depositions of (among others)
defendant’s non-retained experts Barry Weiss, Nancy Kaiser and Chris Hunt to be
taken on October 14, 2013. Support staff from both plaintiff’s and defense law firms
worked to coordinate schedules, the depositions of the witnesses at issue here
remained unchanged.

On Oct. 11, 2013, defense counsel inquired of plaintiff’s counsel whether subpoenas
had been served on the non-retained experts, as required by C.C.P., sec. 2025.280(b).

Counsel for plaintiffs acknowledged that they had failed to serve subpoenas on the
non-retained experts. The non-retained expert witnesses declined to appear for their
depositions without service of subpoenas, and their depositions did not go forward on
Oct. 14, 2013 as scheduled.

Moving party plaintiff requests relief under C.C.P., sec. 473(b). That section is inapplicable where the discovery act provides analogous, although more limited relief.
Zellerino v. Brown (1991) 235 Cal. App. 3d 1097, 1107. Here, C.C.P., sec. 2024.050
is applicable. That statute provides that the court may grant leave to complete
discovery proceedings, or to have a motion concerning discovery heard, closer to the
initial trial date. In exercising its discretion, the court shall take into consideration any
matter relevant to the leave requested, including, but not limited to, the following: (1)
The necessity and the reasons for the discovery. (2) The diligence or lack of diligence
of the party seeking the discovery or the hearing of a discovery motion, and the
reasons that the discovery was not completed or that the discovery motion was not
heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery
motion will prevent the case from going to trial on the date set, or otherwise interfere
with the trial calendar, or result in prejudice to any other party. Id.

In the exercise of its discretion, the Court finds that depositions of the three non-
retained expert witnesses within four calendar days (and two court days) of the
commencement of trial would be prejudicial to defendant.

The sole reason for the failure to timely take these depositions, was plaintiff’s
counsel’s failure to serve subpoenas on the non-retained experts. None of the
communications presented in support of this motion provide a basis for good faith
belief that the defense had offered to produce the non-retained experts without the
necessity of a subpoena.

As the Court concludes that the granting of this motion might interfere with the trial
calendar, or result in prejudice to the defense, the motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.