Dillon Bradley v. MBVJ Hesperia Hotels, LLC; G6 Hospitality LLC

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN BERNARDINO

DILLON BRADLEY, Case No.: CIVSB2425292 Plaintiff, [TENTATIVE] ORDER GRANTING MOTION FOR A v. PROTECTIVE ORDER RE: NON- RETAINED HEALTHCARE MBVJ HESPERIA HOTELS, LLC; G6 PROVIDER EXPERTS, FILED BY HOSPITALITY LLC, DEFENDANTS Defendants.

I. INTRODUCTION

This is a personal injury litigation arising from third-party criminal conduct. On August

14, 2024, Plaintiff Dillon Bradley filed his Complaint against Defendants MBVJ Hesperia

Hotels, LLC and G6 Hospitality LLC. The Complaint pleads 3 causes of action: (1) negligence,

(2) premises liability, and (3) negligent security. Defendants answered.

The Complaint alleges that Bradley was a guest at the Motel 6 at 9757 Cataba Rd.,

Hesperia, which is owned and operated by MBVJ. On May 8, 2024, while Bradley was in the

laundry room, he was attacked with a crowbar by 2 individuals who gained entry through an

unsecured and broken perimeter door (¶¶ 3-4, 8, 12, 20-22). Defendant G6 is the franchisor of

Motel 6 (¶¶ 6, 13).

A. Depositions

Before the trial date was continued, the parties exchanged expert witness lists. Plaintiff

designated 30 non-retained treating physicians. Defendants MBVJ and G6 sought to depose

some of these experts, including Serina Hoover, Psy.D. After they served their Notice of

Deposition, Plaintiff Bradley served his own Notice of Deposition for Dr. Hoover, which

indicated that the deposition would be videotaped and used for trial in lieu of live testimony.

Defendants objected to this procedure. (Goldberg Decl. at ¶¶ 3-4, 7-9, Exhs. B-D.)

Defendants MBVJ and G6 now move for a protective order postponing any recorded

depositions of the non-retained physicians. Plaintiff Bradley opposes. Defendants reply. After

issuing a tentative ruling and holding a hearing on the motion, the Court now issues its final

ruling.1

II. APPLICABLE LAW

A. Protective Orders Generally

Any party or deponent may move for a protective order before, during, or after a

deposition. (Code Civ. Proc., § 2025.420, subd. (a).) For good cause, the court may make any

order to protect any party from unwarranted annoyance, embarrassment, oppression, or undue

burden and expense. (Code Civ. Proc., §§ 2017.020, subd. (a), 2025.420, subd. (b).) The moving

party bears the burden of establishing good cause. (Fairmont Ins. Co. v. Superior Court

(Stendell) (2000) 22 Cal.4th 245, 255.)

1 The Court finds that the moving party has complied with its meet-and-confer obligation. (Goldberg Decl. at ¶¶ 11-14, Exh. E-G; Kitsinian Decl. at ¶ 6, Exh. E.)

The issued protective order may include several different directives, including that the

deposition is not taken, that certain matters are not inquired into, and that the scope of the

examination is limited to certain matters. (Code Civ. Proc., § 2025.420, subd. (b).) If the motion

is denied, then the Court may order that the responding party provide or permit the discovery on

terms and conditions that are just. (Code Civ. Proc., §§ 2025.420, subd. (g).) The issuance and

formation of protective orders are largely discretionary. (Raymond Handling Concepts Corp. v.

Superior Court (Zuelzke) (1995) 39 Cal.App.4th 584, 588.)

B. Video Recording of a Deposition

Instead of live testimony of a treating or consulting physician or expert witness, either

party may use a video recording of the deposition testimony if the deposition notice reserved the

right to use the deposition at the trial per Code of Civil Procedure section 2025.220, and if the

party complied with section 2025.340, subdivision (m). (Code Civ. Proc., § 2025.620, subd.

(d).)

Section 2025.420, subdivision (b)(3), provides that one of the directives proper under a

protective order is “[t]hat a video recording of the deposition testimony of a treating or

consulting physician or of any expert witness, intended for possible use at trial under subdivision

(d) of Section 2025.620, be postponed until the moving party has had an adequate opportunity to

prepare, by discovery deposition of the deponent, or other means, for cross-examination.”

III. WHY THE MOTION SHOULD BE GRANTED

Defendants argue that they are entitled to a discovery deposition of the non-retained

treating doctors before Plaintiff deposes them on video for use at trial. Plaintiff argues that

nothing in this provision allows for a witness to be deposed twice; this statute only means that

the opposing party must be given sufficient time to prepare for the deposition before it is taken.

Under section 2025.420, subdivision (b)(3), a party may seek a protective order to ensure

adequate preparation time before a video deposition is taken for use at trial. The additional

language — “by discovery deposition of the deponent” — plainly means a non-recorded, pre-

trial deposition of the witness.

The California Judge Benchbook on Civil Discovery Proceedings indicates that an

opposing party must be given time to prepare for the cross-examination of an expert on a video

recording, and this may call for special measures, including taking the deponent’s unrecorded

deposition before the video-recorded deposition. (Exh. H to Goldberg’s Decl.) It notes section

2025.420, subdivision (b)(3), expressly permits the postponement of a video-recording

deposition under such circumstances.

The California Practice Guide: Personal Injury notes that after receiving notice that an

expert or treating/consulting physician’s deposition will be video recorded and possibly used for

trial, the opposing party is entitled to seek a protective order to allow it time to prepare for cross-

examination of that expert. (Exh. I [¶ 8:280.5] to Goldberg’s Decl.) The treatise explains that

“discovery deposition” refers to a preparatory, unrecorded deposition designed to ensure the

opposing party learns the witness's testimony prior to trial. (Exh. I [¶ 8:280.6] to Goldberg’s

Decl.)

Finally, the California Practice Guide: Civil Procedure Before Trial indicates that a

protective order is available to postpone a video recording of an expert witness’ testimony that

may be used at trial in lieu of live testimony to allow the opposing party “time to prepare for

cross-examining the expert (including taking the expert’s deposition, if necessary)[.]” (Weil &

Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2025) ¶ 8:677,

p. 8E-100-01.)

Contrary to Plaintiff’s position, a plain reading of the statute, as supported by various

treatises, is that an opposing side may take a non-recorded deposition of a treating or consulting

physician and designated expert witness before the trial-ready deposition is taken and recorded.

Thus, Defendants are entitled to a protective order precluding any recording of treating or

consulting physicians’ depositions until after Defendants have had a reasonable opportunity to

prepare, including taking the physicians’ deposition.

IV. CONCLUSION 1. Defendants MBVJ and G6’s Motion for a Protective Order is GRANTED. Any

recorded deposition of a non-retained treating or consulting physician expert for which the right

to use at trial has been reserved is postponed until after Defendants have had the opportunity to

conduct a non-recorded deposition or other means to prepare for cross-examination.

2. Because Defendants’ motion is granted, Plaintiff’s request for opposing sanctions

is DENIED.

IT IS SO ORDERED.

Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court