Case Number: BC503971    Hearing Date: August 18, 2014    Dept: 58

JUDGE ROLF M. TREU
DEPARTMENT 58
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Hearing Date: Monday, August 18, 2014
Calendar No: 3
Case Name: Peters, et al. v. Anchor Pacifica Management Company, et al.
Case No.: BC503971
Motion: Motion to Compel Deposition
Moving Party: Plaintiffs Shelby Peters and Gerald Peters
Responding Party: Defendant Anchor Pacifica Management
Notice: OK

Tentative Ruling: Motion to compel deposition is granted. Nominal sanctions are awarded in favor of Plaintiffs against Defendant Anchor Pacifica Management in the total amount of $750 to be paid within 30 days.
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Background –
On 3/25/13, Plaintiffs Shelby Peters and Gerald Peters filed this action against Defendants Anchor Pacifica Management Company and Mountain Crest Apartments, LLC arising out of alleged inhabitable conditions in their apartment. The operative First Amended Complaint asserts causes of action for (1) breach of implied warranty of habitability, (2) tortious failure to provide habitable premises, (3) premises liability, (4) negligence, (5) breach of implied covenant of quiet enjoyment, (6) nuisance, (7) constructive eviction, (8) intentional infliction of emotional distress, and (9) breach of contract. Anchor Pacifica filed an answer on 6/5/14; Mountain Crest filed an answer on 6/24/14. Trial is set for 12/15/14; FSC for 12/5/14.

Motion to Compel Deposition –
On 7/15/14, Plaintiffs filed this motion to compel the deposition of Erin Hart, a mold inspector hired by Defendants to test, investigate, and remediate mold. See Winters Decl. ¶ 2, Ex. A [Noesser Depo.]. Plaintiffs submit that a deposition subpoena was issued and served upon Ms. Hart (id. ¶ 3, Ex. C) and Anchor Pacifica’s counsel objected on the basis that she was a retained expert with counsel disagreeing whether Ms. Hart was a percipient witness (id. ¶ 4, Exs. D-E). Plaintiffs’ counsel submits that he offered to take Ms. Hart’s deposition as a percipient witness only and not to seek any expert opinions. Id. ¶ 5.

1. Meet and Confer Efforts
The Court notes that Anchor Pacifica submits that he is willing to present Ms. Hart for deposition as a percipient witness only. Mizen Decl. ¶ 3, Ex. A (letter dated 8/1/14 and asserting that he did not recall Plaintiffs’ offer to take Ms. Hart’s deposition as a percipient witness). Plaintiffs’ counsel responded on 8/5/14 requesting reimbursement of costs for the non-appearance and expenses incurred on this motion. Spelger Decl. ¶ 2, Ex. G. On 8/8/14, Anchor Pacifica’s counsel declined reimbursement on the ground that Plaintiffs’ motion is procedurally and substantively defective, but reiterated the offer to produce Ms. Hart for deposition as a percipient witness. Id. ¶ 3, Ex. H.

2. Defective Deposition Notice
Anchor Pacifica argues that the deposition notice was defective because the deposition date did not comply with CCP § 2025.270 based on its service. However, this defect was not raised in Anchor Pacifica’s written objection and is waived. CCP § 2025.410(a).

3. Retained Expert
Anchor Pacifica also argues that there is distinction in treatment as between opinions by a consulting expert and that of a testifying expert (DeLuca v. State Fish Co., Inc. (2013) 217 Cal.App.4th 671, 691-92), asserting that Ms. Hart has only be retained as a consultant (Mizen Decl. ¶ 2). However, Anchor Pacifica fails to distinguish between expert opinion testimony and a percipient witness’ testimony as to his/her own observations/actions. See, e.g., Broffman v. Newman (1989) 213 Cal.App.3d 252, 262-63; Huntley v. Foster (1995) 35 Cal.App.4th 753, 756. The circumstances presented in this case are akin to those for a treating physician’s fact testimony who acquires personal knowledge of relevant facts independent of litigation (i.e., not because of being retained for expert testimony). See, e.g., Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35-36, 39; Ochoa v. Dorado (2014) 174 Cal.Rptr.3d 889, 904-5. Therefore, the motion to compel deposition is granted. See CCP §§ 2020.010(a), 2025.450.

4. Sanctions
Plaintiffs have requested sanctions against Anchor Pacifica and/or Ms. Hart in the amount of $2,235 pursuant to CCP § 2023.010. In opposition, Anchor Pacifica argues that Plaintiffs have not properly noticed sanctions against Anchor Pacifica’s counsel and have not supported the sanctions requested (cf. Winters Decl. ¶ 7 (asserting only court reporter costs of $240 and one hour of attorney time incurred for the non-appearance, and “costs and expenses” to file the motion)).

Plaintiffs have requested sanctions pursuant to CCP § 2020.240 which permits a non-party deponent who disobeys a deposition subpoena to be punished for contempt. The Court notes that because this motion is brought pursuant to CCP § 202.010(a), sanctions are also authorized pursuant to CCP § 2025.450(c)(1) which in turn incorporates CCP § 2023.010.

In light of the deposition testimony of Ms. Noesser, Anchor Pacifica fails to justify the objection based on Ms. Hart also being a retained expert consultant. Additionally, although Anchor Pacifica’s counsel’s 8/1/14 letter asserts that he does not recall Plaintiffs’ offer to take Ms. Hart’s deposition as a percipient witness, this assertion has not been asserted in Anchor Pacifica’s counsel’s declaration. It appears that Ms. Hart’s failure to comply with the deposition subpoena was the result of Anchor Pacifica’s opposition to the deposition subpoena. Therefore, although the Court agrees that Plaintiffs’ requested amount of sanctions is not supported, the Court also finds that a sanction award is proper against Anchor Pacifica. The Court will award nominal sanctions of $750 in favor of Plaintiffs against Anchor Pacifica.