Case Number: BC470083    Hearing Date: September 12, 2014    Dept: 58

Judge Rolf M. Treu
Department 58

Hearing Date: Friday, September 12, 2014
Calendar No.: 6
Case Name: Hilbich v. Law Offices of John Contos, et al.
Case No.: BC470083
Motion: Ex Parte Application to Continue FSC, Compel Expert Depositions, and to Preclude Plaintiffs’ Legal Standard of Care Expert from Testifying
Moving Party: Defendant John R. Contos, individually and dba Law Offices of John R. Contos
Responding Party: Plaintiffs David Hilbich and Mary Begole

Tentative Ruling: Ex parte application is granted in part. Contos will be permitted to depose Plaintiff’s experts Drs. Yun, Lobatz, and McDonough. Mr. Lear is not precluded from testifying. No sanctions are awarded.

I. Background
On 9/21/11, Plaintiffs David Hilbich and Mary Begole filed this action against Defendants Law Offices of John R. Contos, John R. Contos, Esq., Contos & Bunch, a California Professional Corporation (collectively “Contos”), and Robert S. Fink, Esq. Plaintiffs assert causes of action against all Defendants for (1) legal malpractice-negligence; (2) breach of fiduciary duty; and (3) breach of contract. On 11/26/12, 8/2/13, 10/9/13, the Court denied motions for summary judgment/adjudication filed by Fink. On 9/11/13, the Court denied Fink’s motion to reclassify.

On 12/17/13, the Court granted Plaintiffs’ ex parte application, continuing the trial to 6/20/14 and FSC to 6/13/14 (with all discovery and motion deadlines being reset based on the new dates). On 1/7/14, the Court granted Plaintiffs’ counsel Dana Douglas’ motion to be relieved as counsel. On 2/13/14, Plaintiffs filed a substitution of attorney naming Stanford and Associates as their counsel. On 5/7/14, the court granted Fink’s motion for determination of good faith settlement: Fink was dismissed with prejudice on 5/28/14. On 6/18/14, the Court continued the trial to 9/29/14 (to be trailed to 9/30/14 but with the parties to be present on 9/29/14) and the FSC for 9/12/14. On 6/20/14, the Court denied Plaintiffs’ motion for protective order to limit the number of retained expert witnesses listed by Contos and granted Plaintiffs’ motion to compel the depositions of Contos’ expert witnesses.

On 9/5/14, Contos filed an ex parte application requesting the FSC be continued, Plaintiffs’ experts be produced for deposition, and Plaintiffs’ legal standard of care expert be precluded from testifying.

II. Deposition of Plaintiffs’ Experts
Contos seeks to take the deposition of Plaintiffs’ experts Steve C. Yun, M.D., Michael A. Lobatz, M.D., and Mark McDonough, Ph.D. See Contos Decl. ¶¶ 13-14. In opposition, Plaintiffs argue that Contos failed to meet and confer regarding these depositions and that discovery was not reopened when the Court continued the trial date on 6/20/14.

As to the parties’ meet and confer efforts, the Court notes that Contos fails to submit any evidence that he responded to Plaintiffs’ counsel’s concerns. See Ryan Decl. ¶ 6, Exs. 5-6. However, under the circumstances and given the nature of Plaintiffs’ counsel’s concerns, it is unlikely that meet and confer efforts would have been successful.

As with Plaintiffs’ motions to compel the depositions of Contos’ expert witnesses, the Court has discretion to consider Contos’ motion if the factors giving rise to whether discovery should be reopened is presented for the Court’s consideration. See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1587-88. Contos submits that Plaintiffs’ expert designations in May and June 2014 failed to indicate examinations of Plaintiff by Drs. Lobatz and McDonough, and that these doctors’ medical reports were not received until 8/29/14. Contos Decl. ¶¶ 17-19. Contos also disputes whether adequate notice was given for Dr. Yun. Id. ¶ 13. This establishes circumstances that support reopening discovery to complete expert witness discovery.

However, the Court emphasizes that it does not find that Plaintiffs’ expert witness designation or exchange of expert information violated CCP §§ 2034.260 or 2034.270. Notably, whether it was disclosed that the experts examined Plaintiff pertains to the basis of the expert witnesses expected testimony; and the medical reports appear to have been received by Plaintiffs’ counsel after the exchange of expert information (see Ryan Decl. Exs. 7-8). Additionally, the Court notes that the Contos does not dispute that the noticed deposition of Dr. Yun provided two dates, at Plaintiff’s election which results in Plaintiffs’ counsel’s concerns being justified. Therefore, the Court will permit Contos to take the deposition of Drs. Yun, Lobatz, and McDonough.

III. Preclusion of Plaintiffs’ Legal Standard of Care Expert
Contos seeks to preclude Plaintiffs’ legal standard of care expert, Edward O. Lear, from testifying on the ground that Plaintiffs’ counsel’s declaration supporting Mr. Lear’s expert designation was made untruthfully. The crux of this issue concerns Plaintiffs’ counsel’s declaration dated 4/30/14 (Contos Decl. Ex. A) as to the information pertaining to Mr. Lear.

Contos submits that at Mr. Lear’s deposition, it was discovered that Mr. Lear did not speak with Plaintiff’s counsel prior to 6/10/14 or review any documents prior to that date. Contos Decl. ¶¶ 20-21. However, Plaintiffs’ counsel submits evidence that Mr. Lear was retained through a third-party service (Ryan Decl. ¶ 4, Ex. 1): the evidence indicates that Mr. Lear was referred based on the information provided by Plaintiffs’ counsel and Mr. Lear’s qualifications. Contos argues that this does not explain how Plaintiffs’ counsel could have designated Mr. Lear without contacting him and obtaining his approval, as indicated on the third-party service’s referral. However, the attorney declaration for an expert designation focuses on experts who are expected to offer evidence at trial. See CCP §§ 2034.210(a), 2034.260(b)(1). Whether Plaintiffs’ counsel designated Mr. Lear with Mr. Lear’s approval is a matter between Plaintiffs’ counsel and Mr. Lear and perhaps the State Bar.

Therefore, the Court will not preclude Mr. Lear’s expert testimony.

V. Sanctions
Plaintiffs have requested sanctions against Contos for misleading statements made and for failing to meet and confer. However, as explained above, the Court finds that the parties’ meet and confer efforts are sufficient under the circumstances. Additionally, although the Court has rejected Contos’ arguments to preclude Mr. Lear, the Court does not find that Contos has made misleading statements or frivolous legal arguments. Therefore, sanctions are denied.

All Plaintiffs’ Motion is Limine, other than #2, to which a Notice of Non Opposition was filed, are denied. LASC Rule 3.57. In the event such declaration was indeed filed as to each motion, Court clerk is to be advised immediately.