Case Number: BC698875 Hearing Date: September 19, 2019 Dept: 58

Judge John P. Doyle
Department 58

Hearing Date: September 19, 2019

Calendar No.: 13

Case Name: Jennifer Elfenbein v. Mercedes-Benz USA LLC

Case No.: BC698875

Motion: Motion for Protective Order

Moving Party: Plaintiff Jennifer Elfenbein

Responding Party: Defendant Mercedes-Benz USA LLC

Tentative Ruling: The Motion for Protective Order is granted in part.

BACKGROUND

This is a lemon law case involving Plaintiff Jennifer Elfenbein (“Plaintiff”). On March 23, 2018, Plaintiff filed her complaint against Defendant Mercedes-Benz USA LLC (“Defendant”) alleging causes of action for (1) breach of implied warranty under the Song-Beverly Warranty Act and (2) breach of express warranty under the Song-Beverly Warranty Act.

Plaintiff brought the subject vehicle to three different Mercedes-Benz authorized dealers for repairs between September 18, 2017 and December 15, 2017.

On January 11, 2019, Defendant served a designation of experts that contained 1 retained expert and 12 non-retained experts that Defendant intends to call at trial. (Barry Decl. Ex. 1.) That designation did not identify five of them by name, instead naming that as “Tech” with their designated numbers.

On March 8, 2019, Defendant served an amended expert designation with the same 1 retained expert and 12 non-retained experts that Defendant intends to call at trial. (Barry Decl. Ex. 3.) That designation identified all the individuals by name.

On August 27, 2019, Plaintiff filed this motion for a protective order limiting Defendant’s designation of 12 non-retained experts. Plaintiff argues that Defendant does not need 12 dealer witnesses to address the subject vehicle’s defects and it is highly unlikely that Defendant will need or intend to call all of these witnesses. Plaintiff also seeks monetary sanctions in the amount of $6,852.50 against Defendant and its counsel.

On September 6, 2019, Defendant opposed. Defendant argues that no good cause exists for issuance of the protection order or monetary sanctions. Specifically, Defendant argues that Plaintiff had knowledge of the witnesses because they worked on her car’s repairs, and Plaintiff should have noticed their depositions or moved for this protective order earlier.

On September 12, 2019, Plaintiff filed her reply.

LEGAL STANDARDS

Any party served with a demand for exchange of expert witness information may promptly seek a protective order to limit or excuse the exchange of expert witness information demanded. (Code Civ. Proc., § 2034.250, subd. (a).)

Such orders may be granted to protect any party or expert from “unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” (Id., subd. (b).)

Good cause must be shown for the protective order, and the issuance and formulation of the protective order is in the Court’s discretion. (See, e.g., Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 106-7; Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

“A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper.” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

If “good cause” is shown, the court may grant whatever relief is just, including: (1) quashing the demand because it was not timely served; (2) changing the date or place for the exchange of expert witness information; (3) specifying terms and conditions for the exchange to proceed; (4) dividing the parties into sides on the basis of their interests in the action, and designating which retained experts shall be deemed employed by each side; and (5) ordering any party or side to reduce the number of expert witnesses designated by that party or side. (Code Civ. Proc., § 2034.250, subd. (b).)

DISCUSSION

The 12 non-retained expert witnesses contain the following titles: 3 are “Service Managers;” 4 are “Service Advisors;” and 5 are “Techs.” (Barry Decl. Ex. 3.) Because this is a simple lemon law case, the Court agrees that the testimony of these non-retained experts appear to be duplicative. Additionally, the Court notes that Defendant retained an expert who was a former field technical specialist. Therefore, the testimony of additional technicians and service managers/advisors seems to add little to a fact-finder’s understanding of the issues in this case.

Finally, Defendant argues that these designated expert witnesses serve more as fact witnesses whose testimony may spill over into the expert domain because of their skill and training. However, the designation of these witnesses as “experts” means more than just that they are fact witnesses who might use their expert knowledge to testify about the facts of the subject vehicle’s alleged defects and repairs. Therefore, this designation is improper.

Accordingly, the Court agrees with Plaintiff that Defendant should serve a second amended expert witness disclosure indicating which of its identified non-retained experts it needs to defend its case and which it intends to call at trial. This protective order is necessary to minimize redundant testimony. Defendant is to serve this amended expert witness disclosure by mail and email by September 27, 2019.

The Court at this time declines to set a limit of Defendant’s non-retained experts. To the extent Plaintiff objects to Defendant’s second amended expert disclosure, Plaintiff, after properly meeting and conferring, can file a motion seeking similar relief at that time if appropriate.

MONETARY SANCTIONS

Plaintiff seeks monetary sanctions in the amount of $6,852.50 against Defendant and its counsel.

A monetary sanction “shall” be imposed against the losing party unless the court finds “substantial justification” for that party’s position or other circumstances make the sanction “unjust.” (Code Civ. Proc., § 2034.250, subd. (d).)

Here, the notice of motion is defective. The notice of motion (as filed) contains only one page and contains the request for monetary sanctions only in the caption. That request also is not specified whether it is sought against Defendant or Defendant’s counsel. Accordingly, the Court denies the request for monetary sanctions. (See Code Civ. Proc., § 2023.040 [“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. . . . .”].)

Even if the Court were to grant monetary sanctions, Plaintiff’s requested amount is unreasonable considering the motion’s simplicity. Additionally, Plaintiff cites no supporting authority why the Court should grant attorney fees for her counsel’s meet and confer efforts. Finally, Plaintiff’s counsel does not provide any explanation why his hourly rate is $450.

Accordingly, if the Court were to award monetary sanctions, the Court would reduce the hourly rate and hours incurred to find that $1,200 in monetary sanctions would be appropriate representing 4 hours expended at $300 per hour.

CONCLUSION

The Court grants Plaintiff’s motion for a protective order as set forth herein.

The Court denies Plaintiff’s request for monetary sanctions.