MINOO HENDESSI VS DR MICHAEL ZADEH

Case Number: BC559315 Hearing Date: June 13, 2018 Dept: 2

Defendants’ Motion for Protective Order Re Deposition of Stanley Klein, M.D., filed on 5/2/18, is DENIED.

1. Defendants ask for an order precluding the taking of the deposition of Stanley Klein, M.D., Plaintiff’s expert. Defendants have not shown that anyone has demanded that Dr. Klein appear for deposition. Defendants have not shown why they must be protected from having to take Dr. Klein’s deposition if no party has noticed that deposition. Cal. Code Civ. Proc. § 2025.420(b)(1).

(a) Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to

protect any party, deponent, or other natural person or organization from unwarranted

annoyance, embarrassment, or oppression, or undue burden and expense. This

protective order may include, but is not limited to, one or more of the following

directions:

(1) That the deposition not be taken at all. …” Cal. Code Civ. Proc. § 2025.420.

In Reply, Defendants argue that a protective order will remove the need for Defendants from having to “take Dr. Klein’s deposition … .” Repy 2:11-12. Any other party “may” take the deposition of another party’s expert. It isn’t mandatory.

Any other party “may” take the deposition of another party’s expert. It isn’t mandatory. Cal Code Civil Procedure § 2034.410. Cal Code Civil Procedure § 2034.410.

2. Nor have Defendants cited any authority or good cause to preclude Dr. Klein’s testimony at trial. His deposition has not been taken, so there is no indication what his testimony will consist of or whether or not that testimony is improper and should be excluded at trial.

Assuming his deposition is taken, and Defendants believe the substance of that testimony is improper at trial, then a motion to exclude that testimony and evidence should properly be made to the trial court

The motion must be accompanied by a meet and confer declaration. Section 2025.420(a). Defendants objected to Plaintiff’s designation demanding that Plaintiff withdraw Dr. Klein. Motion, Ex. I. There is no discussion about preventing his deposition or precluding his testimony at trial.

Defendants sent a meet and confer letter on 4/25/18 demanding that Plaintiff withdraw Dr. Klein. Motion Ex. J. The parties did not discuss the taking of his deposition or precluding his testimony at trial. It appears that what Defendants are attempting to do is have Dr. Klein withdrawn as an expert purportedly because his anticipated testimony is not limited to just fraud issues. See Keddington Declaration ¶ 10. However, that is not the motion that Defendants have made. Nothing in this motion has anything to do with the propriety of Plaintiff’s designation).
Defendants ask for a different remedy in their Reply brief, asking for an order to prohibit Dr. Klein from serving as an expert or precluding him from offering any opinions about the standard of care, causation and damages. Reply 2:12-17. These requests should have been made with the moving papers to enable Plaintiff to timely respond.

3. Plaintiff is entitled to an award of sanctions as there is no substantial justification or authority for the relief requested by Defendants. The court awards sanctions of $1,000 to Plaintiff and against Defendants and counsel. Code Civ. Proc., § 2025.420(h).

Moving party is ordered to give notice.

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