True v. Shank, E024465.

• Decision Date: 30 June 2000
• Docket Number: No. E024465.,E024465.
• Citation: 97 Cal.Rptr.2d 462,81 Cal.App.4th 1250
• Court: California Court of Appeals Court of Appeals
• Parties: Martin Cecil TRUE et al., Plaintiffs and Appellants, v. Donald H. SHANK et al. Defendants and Respondents.

97 Cal.Rptr.2d 462

81 Cal.App.4th 1250

Martin Cecil TRUE et al., Plaintiffs and Appellants, v. Donald H. SHANK et al. Defendants and Respondents.

No. E024465.

Court of Appeal, Fourth District, Division 2.

June 30, 2000.

Certified for Partial Publication.^*

Rehearing Denied July 21, 2000.

Review Denied October 3, 2000.

Gary Rand, Suzanne E. Rand-Lewis, Van Nuys, and Timothy D. Rand-Lewis, Los Angeles, for Plaintiffs and Appellants.

Sonnenschein, Nath & Rosenthal, Ronald D. Kent, Los Angeles, Jeffry Butler and Jill Golden, for Defendants and Respondents Donald H. Shank and Debra C. Shank.

Baker, Keener & Nahra and Phillip A. Baker, Santa Monica, for Defendants and Respondents, Keller Industries, Inc., Keller Ladders, Inc. and Kmart Corporation.

OPINION

WARD, J.

Plaintiffs and appellants Martin Cecil True and Nannette True, husband and wife,¹ appeal from a judgment entered in favor of defendants Donald H. Shank, Debra C. Shank, Keller Industries, Inc. (Keller) and Kmart Corporation (Kmart)² and against plaintiffs, after the trial court granted defendants' motion for nonsuit. Plaintiffs contend that the trial court erred by (1) granting defendants' motions in limine to exclude plaintiffs' expert witness testimony at trial, and (2) denying plaintiffs' request for a continuance to complete discovery. We find no error, and we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On February 16, 1994, Martin True fell from a ladder at a property owned by the Shanks. The ladder was manufactured by Keller and sold by Kmart.

On February 6, 1995, plaintiffs filed suit against defendants for negligence, premises liability, products liability and loss of consortium.

On November 25, 1998, plaintiffs designated Dr. Mark Greenspan and Paige Eskridge as experts retained to testify at trial. On December 2, 1998, pursuant to Code of Civil Procedure³ section 2034, the Shanks noticed expert witness depositions for Dr. Greenspan and Eskridge. On December 14, four days before the scheduled depositions, plaintiffs served an opposition to the noticed depositions, objecting to the date and location of the depositions and requesting that mutually convenient dates for the depositions be arranged between counsel. Plaintiffs, however, did not state that the basis of plaintiffs' objection was defendants' failure to tender expert witness fees with the notice of depositions.

On December 17, Shanks' counsel sent a letter to plaintiffs' counsel explaining that the depositions were properly noticed and that the objections were improper. Shanks' counsel indicated that she would be unavailable from December 19, 1999 (one day after the date specified in the notice of deposition) through January 4, 1999, (last date for expert depositions). Hence, Shanks' counsel provided plaintiffs with no available dates for the expert depositions, except for the originally scheduled date of December 18.⁴ Counsel also stated that the Shanks would seek to exclude expert testimony at trial if plaintiffs failed to produce the experts for deposition, as required under section 2034.

Keller and Kmart's counsel also served a notice to take Eskridge's deposition on January 4, 1999. Plaintiffs' counsel again served an opposition to Keller and Kmart's notice of deposition based on the same grounds as the previous opposition.

On December 29, 1998, Keller and Kmart's counsel responded to plaintiffs' counsel, advising her that the objections lacked merit and that she failed to provide alternative dates for Eskridge's deposition. When plaintiffs' counsel failed to respond, Keller and Kmart's counsel sent another letter to plaintiffs' counsel, noting her failure to provide alternative dates for the expert deposition. Two days later, on January 8, 1999, plaintiffs' counsel wrote to defendants' counsel indicating that she was "working on clearing dates" for the depositions.

Pursuant to the Shanks' notice of deposition, the deposition of Keller and Kmart's designated expert, Dr. Mack Quan, took place on January 12, 1999. Plaintiffs' counsel did not attend the deposition because of car problems en route to the deposition.

On January 14, 1999, the Shanks filed a motion in limine to exclude testimony from plaintiffs' experts, Dr. Greenspan and Eskridge, and plaintiffs filed an ex parte application to continue the trial or in the alternative, for leave to complete expert witness depositions of Dr. Quan and plaintiffs' experts. One day later, Keller and Kmart also filed a motion in limine to exclude testimony from Eskridge.

At the trial management conference on January 15, 1999, the trial court deferred ruling on defendants' motions in limine to give the parties an opportunity to depose plaintiffs' experts. The trial court also did not make any rulings "with regard to Dr. Quan." Thereafter, although defendants' counsel provided available dates for depositions, the experts were not deposed.

On January 19, 1999, the trial court continued the trial to January 25, 1999 because plaintiffs' counsel was ill. At this hearing, the trial court stated that its tentative ruling was to grant the motions in limine because the expert depositions "have not gone forward."

On January 25, 1999, the trial court granted defendants' motions in limine to preclude plaintiffs' expert witnesses from testifying. The trial court, however, did not rule on plaintiffs' application to continue the trial date, or, in the alternative, for leave to complete expert witness depositions.

Based on plaintiffs' counsel's statement that she would not put on a case-in-chief in light of the court's rulings on the motions in limine, the court granted defendants' motion for nonsuit. Thereafter, the court entered judgment against plaintiffs. Plaintiffs appeal.

ANALYSES

I. Expert Witness Fees Could Be Tendered Either With the Notice of Expert Witness Deposition or at the Commencement of the Deposition

Plaintiffs raise an issue of first impression: Whether an expert witness deposition notice is improper unless it is accompanied by a tender of expert witness fees under section 2034. For reasons which follow, we conclude that under section 2034, expert witness fees could be tendered either with the deposition notice or at the commencement of the deposition.

A. Standard of Review

"The proper interpretation of statutory language is a question of law which this court reviews de novo, independent of the trial court's ruling or reasoning. [Citations.]" (Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 126, 60 Cal.Rptr.2d 377, overruled on other grounds in Schreiber v. Estate of Riser (1999) 22 Cal.4th 31, 39-40, 91 Cal.Rptr.2d 293, 989 P.2d 720.)

B. Defendants Properly Noticed the Depositions of Plaintiffs' Expert Witnesses

Plaintiffs contend that because defendants failed to tender expert witness fees with the notices of depositions, the notices were improper, and thus, plaintiffs were not required to produce their experts for depositions.

Section 2034, subdivision (i) sets forth the procedures for noticing expert witness depositions. Section 2034, subdivision (i), paragraph (3) ("section 2034(i)(3)") states that "[t]he service of a proper deposition notice accompanied by the tender of the expert witness fee described in paragraph (2) is effective to require the party employing or retaining the expert to produce the expert for the deposition." However, "[i]f the party noticing the deposition fails to tender the expert's fee under paragraph (2), the expert shall not be deposed at that time unless the parties stipulate otherwise."

Under section 2034, subdivision (i), paragraph (2) ("section 2034(i)(2)"), "[t]he party taking the [expert] deposition shall either accompany the service of the deposition notice with a tender of the expert's fee ... or tender that fee at the commencement of the deposition...." (Italics added.)

Here, the trial court found that under section 2034, expert witness fees can be tendered at the time the depositions are noticed or at the depositions. Plaintiffs, however, contend that expert fees must be tendered with the deposition notice under section 2034(i)(3), unless the parties stipulate otherwise. In essence, plaintiffs argue that section 2034(i)(3) should be read in isolation, regardless of its explicit reference to section 2034(i)(2). Plaintiffs' narrow reading of section 2034 is supported neither by the language of section 2034 nor by common sense.

"`[A] court is to construe a statute "`so as to effectuate the purpose of the law.'"' [Citations.] `In addressing this issue we begin, as always, with the language of the statute itself.' (Rojo v. Kliger (1990) 52 Cal.3d 65, 73 [276 Cal.Rptr. 130, 801 P.2d 373]) `Under familiar rules of construction, words in a statute must be given the meaning they bear in ordinary usage [citation]; the meaning of the enactment may not be determined from a single word or sentence; the words must be construed in context, and provisions relating to the same subject matter must be harmonized to the extent possible [citation].' (Title Ins. & Trust Co. v. County of Riverside (1989) 48 Cal.3d 84, 91 [255 Cal.Rptr. 670, 767 P.2d 1148]) Moreover, `every word and phrase of a statute should be given significance in order to effect the legislative intent.' (Steinberg v. Amplica, Inc. (1986) 42 Cal.3d 1198, 1205 [233 Cal. Rptr. 249, 729 P.2d 683]) `In attempting to ascertain legislative intent when construing a statute we presume that the Legislature did not intend absurd results.

[Citation.]' (In re Head (1986) 42 Cal.3d 223, 232 [228 Cal.Rptr. 184, 721 P.2d 65]) `Accordingly, if a statute is susceptible to more than one interpretation, we must adopt the reasonable meaning and reject that which would lead to an unjust and absurd result.' (People v. Catelli (1991) 227 Cal.App.3d 1434, 1448 )" (In re Daniel M. (1993) 16 Cal. App.4th 878, 882, 20 Cal.Rptr.2d 291.)

Here, although section 2034(i)(3) states that an expert need not be produced for a deposition if the...