Linea Polk vs David Gerrity
Case No: 18CV00938
Hearing Date: Wed Jun 19, 2019 9:30

Nature of Proceedings: Compliance with Deposition Subpoena; Augment Expert Witness Designation; Strike Defendants Supplemental Expert Witness Designation

Tentative Ruling: 1. Plaintiffs Linea Polk and Shannon Morgan Polk’s motion to compel compliance with deposition subpoena is moot and the court denies all requests for sanctions. Because of the difficulty in scheduling Powers’s deposition, the court orders that deposition to go forward on June 19 at 1:30 p.m. absent an express agreement among counsel for plaintiffs, counsel for defendant, and Powers.

2. Plaintiffs’ Linea Polk and Shannon Morgan Polk’s motion to augment/amend their expert witness designation is withdrawn and off calendar.

3. The court grants plaintiffs’ Linea Polk and Shannon Morgan Polk’s motion to strike defendant David Gerrity’s supplemental declaration of expert witnesses and orders stricken from defendant’s supplemental expert witness designation Lester M. Zackler, M.D.,; and the designation of Gary Fuller as a retained expert, though he shall remain as a non-retained expert. The court denies the request for a monetary sanction.

Background: On February 23, 2018, plaintiffs Linea Polk and Shannon Morgan Polk commenced this action against defendant David Gerrity, individually and as trustee of the David W. Gerrity Revocable Trust. (Plaintiffs also named Janette Van Hirtum as a defendant but have since dismissed the complaint as to her.)

Plaintiffs are tenants of property at 512 E. Victoria Street in Santa Barbara and defendant is their landlord. Plaintiffs allege mold infestation on the premises and defendant’s failure to remediate the mold. Plaintiffs claim physical and emotional injuries to their health, strength, and activity. The causes of action in the complaint are 1) negligence (general, failure to disclose latent defects, violation of statutory duties, failure to perform covenant to repair), 2) negligent infliction of emotional distress, 3) breach of the implied warranty of habitability—common law, 4) breach of the implied warranty of habitability—statutory, 5) private nuisance, and 6) breach of contract.

Defendant answered the complaint and filed a cross-complaint for 1) breach of contract, 2) negligence, and 3) conversion. Trial is scheduled for August 7, 2019.

Motion to Compel Compliance with Deposition Subpoena and for Sanctions: Plaintiffs moved to compel deponent Cindy Powers’s compliance with a deposition subpoena and for sanctions against Powers and counsel for defendant. (Powers was formerly a property manager for defendant.) Powers has since been in contact with counsel for plaintiffs and has agreed to attend her deposition on June 19, 2019, at 1:30 p.m. Therefore, plaintiffs withdraw their requests for sanctions and for an order to show cause against Powers. Because of the difficulty in scheduling Powers’s deposition, the court orders that deposition to go forward on June 19 at 1:30 p.m. absent an express agreement among counsel for plaintiffs, counsel for defendant, and Powers.

The motion remains on calendar for the request for a monetary sanction against counsel for defendant. Defendant opposes the motion and requests a monetary sanction against plaintiffs.

1. Facts: The facts are not in dispute except for differing versions of a conversation on April 26. As best the court can determine, this is the sequence of events leading up to the present motion:

On March 9, defense counsel Lacy Taylor informed plaintiffs’ counsel John Richards that she would be unavailable for depositions from April 22 through May 10 due to a trial. On March 21, Taylor informed Richards that she would be unavailable for depositions from mid-April to mid-May. She reminded him of this on April 3.

On April 15, Richards issued a deposition subpoena for Powers’s deposition set for May 3. On April 23, at 9:39 a.m., Taylor’s assistant emailed Richards a notice of unavailability of counsel listing dates of April 30 – May 14. On April 23, at 4:30 p.m., Powers was served with the deposition subpoena. Richards sent the deposition subpoena to Taylor, et al., by email on April 24 at 2:03 p.m. Later that afternoon, Taylor informed Richards that she would be available the week of May 27 except May 28.

On April 26, Taylor emailed Richards regarding notices of depositions for times when she had informed him that she was unavailable. Richards sent an email that afternoon indicating he would move the deposition dates.

Taylor and Powers had a telephone conversation on April 26. Their recollections of the conversation differ. Taylor says that Powers said she did not know what to do about the documents plaintiffs were requesting. (The deposition subpoena includes a list of documents to be produced.) Taylor told Powers she could not give her any advice because she was not her attorney. Taylor “told her that the deposition date for May 3, 2019 was not going forward and that likely she would be re-served with another notice.” Powers wanted confirmation that the deposition was not going forward and Taylor forwarded Richards’s April 26 email to Powers. Taylor says she did not tell Powers not to show up on May 3 and that she merely passed on information that the deposition was going to be rescheduled and Taylor did not yet have a date.

In her declaration, Powers says that, during the April 26 conversation, Taylor twice advised her that she did not have to appear for the deposition on May 3 because the deposition date was going to be moved to another date. Powers says that if Taylor had not “instructed” her not to appear, she would have made arrangements to appear for the May 3 deposition.

Regarding documents, Powers says that she told Taylor that she had spent a considerable amount of time going through a storage space searching for documents requested in the deposition subpoena. She told Taylor that she had located leases and was ready to produce the leases at her deposition. Powers says: “I explained to Ms. Taylor that I was going to have to do more work to locate all of the documents responsive to my trial subpoena, but that I was willing to do it. I also told Ms. Taylor that I was not going to lie or destroy any of the documents. Ms. Taylor responded by saying ‘I would never tell you to shred the documents … however you do not need them.’ I understood her to be telling me that she didn’t think I had to go look for the other documents.

The notice for the May 3 deposition set the location at the Santa Barbara Courthouse library. At the time of the May 3 deposition, the courthouse was closed due to an investigation into a suspicious package.

In his declaration, Richards says that, on May 14, 2019, at an ex parte hearing held in Department 4 for the purposes of filing a motion on an expedited basis to compel compliance with the deposition subpoena, defendant’s co-counsel John Thyne told the court that his office had instructed Powers not to appear on May 3. (The minute order indicates the ex parte hearing was in Dept. 6.) There is no transcript of this hearing. Thyne was not the person who had the conversation with Powers.

2. Analysis: Plaintiffs have cited no legal authority for issuing a monetary sanction against defendant’s counsel in the context of a motion to compel the deposition of a third-party witness. Plaintiffs cite rules of professional conduct, but no rule providing for a sanction.

The court finds fault on both sides for Powers’s nonappearance on May 3. Richards set the May 3 deposition in a subpoena issued on April 15. Yet, he knew in March that Taylor was not available on that date. Taylor either “instructed” Powers not to attend the deposition or told her it was not going forward, which was true. There is no substantive difference between the two versions of the conversation. It is very likely that a deponent who was told the deposition was not happening would not attend whether or not instructed to not attend. It is also true that, had Powers shown up at 9:00 a.m. on May 3, she would not have been able to get to the place of the deposition as the entire courthouse was closed and the vicinity around it cordoned off.

No sanction against defendant’s counsel is authorized or warranted with respect to Powers’s nonappearance at the May 3 deposition. The motion was necessary to get Powers’s attention and have her agree to a deposition. No sanction against plaintiffs is warranted.

With the reply, plaintiffs raise the issue of documents to be produced at the deposition. Plaintiffs contend that Taylor attempted to either get Powers to destroy documents or not to produce them. Plaintiffs ask the court to refer Taylor to the State Bar for discipline.

First, it is clear from both Taylor’s and Powers’s declarations that Taylor did not tell Powers to destroy any documents. Any suggestion to the contrary is hyperbolic and inaccurate.

If Taylor said Powers did not need documents, it is not clear what she meant. There is no evidence that she told Powers not to produce anything. In any event, any statement by Taylor had no effect on Powers. She intends to locate all documents responsive to the deposition subpoena and produce them.

Plaintiffs Linea Polk and Shannon Morgan Polk’s motion to compel compliance with deposition subpoena is moot and the court denies all requests for sanctions.

Motion to Augment/Amend Plaintiffs’ Expert Witness Designation: Plaintiffs moved, pursuant to CCP § 2034.610, to augment their expert witness designation by changing the designation of Roy W. Harthorn, M.P.A, C.P.O, from a retained expert to a non-retained expert. After the designation, Harthorn told plaintiffs’ counsel that defendant is a client of his and he could not testify.

In a declaration, Harthorn says he was never retained as an expert. [Harthorn Dec. ¶2] Counsel for plaintiffs, John Richards, approached Harthorn about possibly needing his services. They did not discuss the case and Harthorn provided his CV and fees. Harthorn heard nothing further until he received a notice of deposition. [Harthorn Dec. ¶3] He has no knowledge of the case and is not prepared to testify in any capacity. [Harthorn Dec. ¶¶4, 5]

In light of Harthorn’s declaration and his production of some unspecified documents, plaintiffs do not intend to call him as a witness and no longer seek to amend or augment the expert witness designation.

In response to the motion, defendant’s counsel, Lacy Taylor, gratuitously recounts the history of the expert witness designation and the results of noticing expert depositions. Taylor says that Nathan Seward, one of plaintiffs’ designated experts, called her and said he was not retained. Apparently there was some confusion within Seward’s office—something of which Taylor could not have been aware. She then called another of the designated experts, Mark Schniepp, who said he was not retained because he had not yet been paid. None of this is germane to the now-withdrawn motion.

Taylor having opened that can of worms, Richards replies in kind with declarations from Schniepp and another expert, Steven Epcar, whom Taylor called. Schniepp says he told Taylor he was retained. Epcar says he returned Taylor’s call and attorney John Thyne inquired about his status as a retained expert, saying other experts designated as retained had not been retained. In his reply memorandum, Richards again asks the court to report Taylor to the State Bar for allegedly unlawfully obstructing plaintiffs’ access to evidence, including a witness.

There is nothing inappropriate about noticing depositions of designated experts. Once one of those experts indicated he was not retained, it was not improper to determine if the other experts had been retained in order to know who was going to be deposed and who was not. The better approach may have been to contact Richards. But the approach taken was not unethical or illegal.

Once again a relatively simple and ultimately unnecessary motion has generated heat over extraneous matters not germane to the motion. Quite simply, plaintiffs’ Linea Polk and Shannon Morgan Polk’s motion to augment/amend their expert witness designation is withdrawn and off calendar.

Motion to Strike Defendants’ Supplemental Designation of Expert Witnesses: Plaintiffs move to strike defendant’s supplemental expert designation of Lester M. Zackler, M.D., and the supplemental designation of Gary Fuller as a retained expert rather than as a non-retained expert. Plaintiffs seek a monetary sanction of $2,000. Defendant opposes the motion.

On April 16, 2019, defendant served his expert witness designation. As retained experts, he listed Jonathan Corren, M.D., and Brian P. Daly, an industrial hygienist, safety engineer, and environmental health scientist. As to Dr. Corren, defendant said he would “testify regarding injuries Plaintiffs claims to have suffered, causation, treatment, follow-up treatment, and the cause or potential causes of Plaintiff’s alleged symptoms and injuries, and their prognosis and damages. Dr. Corren will also testify regarding any potential future treatment to Plaintiffs, the necessity of any future treatment, and the reasonableness of Plaintiff’s medical bills incurred to date as well as any and all potential or al1eged future symptoms, disabilities or care and treatment to Plaintiff.” Defendant listed Gary Fuller as an “unretained” expert.

On April 24 or 29, plaintiffs served their expert witness designation. (The parties dispute the date but timeliness of the designation is not an issue.) Plaintiffs designated four retained experts not relevant here. As non-retained experts, they designated four doctors, a nurse, Judy Wood of Wood Environmental Services, and other experts not relevant here. Plaintiffs stated: “The health care providers listed above may be called to testify at trial concerning any of the issues in this case, including, but not limited to, Plaintiff’s medical history and/or treatment, standard of care, duty, breach, liability, causation, damages, diagnosis, prognosis, and the reasonableness/necessity of medical care and treatment provided.”

On May 21, the parties exchanged supplemental expert witness designations. Defendant added Lester M. Zackler, M.D., and listed Gary Fuller as a retained expert (formerly non-retained). Defendant said Zackler would testify “regarding injuries Plaintiffs claims to have suffered, causation, including the potential causes of Plaintiff’s alleged symptoms and injuries, and their prognosis and damages. Dr. Zackler will also testify regarding neurological symptoms, such as memory loss and fatigue, and whether such symptoms can be caused by mold exposure.” Defendant indicated that Fuller would testify at trial regarding his opinions as to the initial source of moisture intrusion in the bedroom and the bathroom based on his review of the property, the photographs of the property, the mold reports, deposition transcripts, and discovery exchanged in this case.”

The issues raised by plaintiffs’ motion are governed by CCP § 2034.280(a), which provides that any party who engaged in the initial expert exchange “may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.”

Defendant says that plaintiffs stated in discovery responses that they suffer from “fatigue, lethargy, memory and vocabulary loss, cognitive loss, nerve pain in forearms and hands, joint pain and body aches throughout” and “fatigue, lethargy and memory problem.” [Opposition 3:19-22] Defendant says that Dr. Zackler “is being called as an expert to directly rebut Plaintiffs’ medical experts who have been designated to testify that any of the above mentioned symptoms may be linked to mold exposure.” [Opposition 3:22-24]

Defendant has not identified any of plaintiffs’ experts who are designated to testify about neurological issues. Plaintiffs’ designation listed healthcare providers who would testify about “Plaintiff’s medical history and/or treatment, standard of care, duty, breach, liability, causation, damages, diagnosis, prognosis, and the reasonableness/necessity of medical care and treatment provided.” Defendant previously obtained an expert, Dr. Corren, to testify on these subjects, i.e., “regarding injuries Plaintiffs claims to have suffered, causation, treatment, follow-up treatment, and the cause or potential causes of Plaintiff’s alleged symptoms and injuries, and their prognosis and damages.”

Defendant does not say when plaintiffs identified neurological symptoms in response to discovery requests, submitting only pages from responses to form interrogatories. Defendant does not suggest these symptoms were identified after the expert witness designation in April 2019.

As to Dr. Zackler, defendant has not demonstrated either of the two conditions for a supplemental declaration in CCP § 2034.280(a), i.e., 1) to express an opinion on a subject to be covered by an expert designated by plaintiffs and 2) the defendant had not previously retained an expert to testify on that subject. The court will order Lester M. Zackler, M.D., stricken from defendant’s supplemental expert witness designation.

Defendant seeks to designate Fuller as a retained expert instead of non-retained because plaintiffs designated Judy Wood as a non-retained expert. This is based on Wood’s report that she prepared for defendant in October 2017. There is no authorization for re-designation of a witness from retained to non-retained in CCP § 2034.280(a).

Nor is it necessary to re-designate Fuller to permit him to offer his opinions on the cause of mold. What distinguishes a non-retained expert from a retained expert is not the content of the testimony, but the context in which he became familiar with the facts that were ultimately the subject of litigation, and which form the factual basis for his opinion. Schreiber v. Estate of Kiser, 22 Cal.4th 31, 35-36 (1999). The court will strike the designation of Gary Fuller as a retained expert; he shall remain as a non-retained expert.

The court grants plaintiffs’ Linea Polk and Shannon Morgan Polk’s motion to strike defendant David Gerrity’s supplemental declaration of expert witnesses and orders stricken from defendant’s supplemental expert witness designation Lester M. Zackler, M.D.,; and the designation of Gary Fuller as a retained expert, though he shall remain as a non-retained expert.

Plaintiffs request a monetary sanction. They argue that a sanction is authorized because defendant’s supplemental expert designation is a misuse of the discovery process, citing CCP § 2023.010(b): “Using a discovery method in a manner that does not comply with its specified procedures.” It is not clear that a supplemental expert designation is a “discovery method.” In any event, the court has discretion not to impose a monetary sanction pursuant to CCP § 2023.030. The court does not believe a monetary sanction is warranted here.