Judge: Andrew E. Cooper, Case: 22CHCV01033, Date: 2024-10-24 Tentative Ruling

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Case Number: 22CHCV01033    Hearing Date: October 24, 2024    Dept: F51

MOTION TO STRIKE

Motion Filed: 6/20/24

MOVING PARTY: Defendant Valencia B. Imports, Inc. dba Valencia BMW (“Defendant”)

RESPONDING PARTY: Plaintiff Terry Stevenson (“Plaintiff”)

NOTICE: OK

RELIEF REQUESTED: Defendant moves to strike either of Plaintiff’s experts, Azadeh Farin, M.D., or Edwin Haronian, M.D., from Plaintiff’s Expert Designation as duplicative.

TENTATIVE RULING: The motion is denied.

BACKGROUND 

This is a personal injury action in which Plaintiff, a vehicle passenger, alleges she was injured on 2/26/21 when nonmoving defendant Donte Ellsworth rear-ended Plaintiff’s Mercedes-Benz vehicle with a BMW vehicle. (Compl. ¶¶ 5–7.) Plaintiff alleges that Ellsworth was employed by Defendant and acting within the scope of his employment at all relevant times. (Ibid.)

On 11/1/22, Plaintiff filed her complaint, alleging against both Defendants the sole cause of action for Personal Injury. On 12/2/22, Defendant filed its answer.

On 6/10/24, Plaintiff served her Designation of Experts. On 6/20/24, Defendant filed the instant motion to strike. On 10/11/24, Plaintiff filed her opposition. On 10/17/24, Defendant filed its reply.

ANALYSIS

Here, Defendant argues that “as part of her Expert Designation, Stevenson has included both Azadeh Farin, M.D. and Edwin Haronian M.D. as retained experts. However, in her list of areas for each Expert, Stevenson has provided nearly identical topic listings. As such, one or the other expert is duplicative and should be stricken from this matter.” (Def.’s Mot. 3:6–9.)

A.    Legal Authority

Defendant bases the instant motion on Code of Civil Procedure section 436, Evidence Code section 723, and a number of cases. For the following reasons, the Court finds each authority to be inapplicable to the instant action.

Under Code of Civil Procedure section 436, the Court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a) [emphasis added].) As Plaintiff observes in opposition, “an expert designation is not a pleading.” (Pl.’s Opp. 1:22.) Accordingly, the Court finds that section 436 does not provide Defendant with the authority to strike either Dr. Farin or Dr. Haronian from Plaintiff’s Expert Designation.

Next, Defendant cites to Fairfax v. Lords (2006) 138 Cal.App.4th 1019, to support its position that “a party can bring a motion to strike an expert designated in the same field at any time prior to trial.” (Def.’s Mot. 5:4–5.) As Plaintiff observes in opposition, “Fairfax says nothing to this effect. Fairfax dealt with a late or ‘delayed’ expert designation, not a situation where there is an expert designation ‘in the same field’ as Defendant contends.” (Pl.’s Opp. 1:26–28.) Accordingly, the Court finds that the Fairfax case is inapplicable to the facts presented here.

Next, Defendant contends that “under Evidence Code § 723, it is the policy of California Law that parties are limited to one expert per field of expertise per side, absent a court order to the contrary.” (Def.’s Mot. 5:6–7.) However, Evidence Code section 723 merely gives the Court wide discretion to, “at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party.” (Evid. Code § 723.) The statute is silent as to any limit to number of experts per field of expertise or requirements for court orders to the contrary.

Finally, Defendant cites to two cases where the Court of Appeal affirmed the exclusion of expert testimony as unduly cumulative of another testifying expert’s opinion. (South Bay Chevrolet v. General Motors Acceptance Corp. (1992) 72 Cal.App.4th 861, 906; Belfiore-Braman v. Rotenberg (2018) 25 Cal.App.5th 234, 248–250.) In contrast, and as Plaintiff argues in opposition, here, those cases are distinguishable because Defendant filed the instant motion to strike an expert designation, as opposed to and prior to obtaining any expert testimony as found in those cases. (Pl.’s Opp. 2:2–7 [“Defendant cites various cases about ‘cumulative testimony’ and a ‘substantial overlap’ in testimony … without actually providing any information or testimony to this Court as to what testimony from Dr. Farin and Dr. Haronian is actually ‘cumulative’ or ‘overlapping’ because Defendant jumped the gun on filing a motion before deposing these doctors to obtain their trial opinions.”].) Accordingly, the Court finds that South Bay Chevrolet and Belfiore-Braman are inapposite here.

B.     Substantive Merits

Even if Defendant had successfully provided the Court with applicable legal authority to strike an expert from Plaintiff’s Expert Designation, the Court finds little merit to Defendant’s argument. According to the Expert Designation, Dr. Farin is a neurosurgeon and Dr. Haronian is an orthopedic surgeon. (Ex. A to Decl. of Tami S. Crosby.) Plaintiff represents that since the filing of the instant motion, both of the doctors have been deposed, and “as made clear from the testimony, both Dr. Farin and Dr. Haronian are offering opinions with respect to Plaintiff’s injuries and treatment as to different issues and aspects of Plaintiff’s injuries within their respective specialties.” (Pl.’s Opp. 2:27–3:3.)

While Defendant argues that Plaintiff “provides full copies of two Depositions without excerpting down to the relevant pages,” the Court finds otherwise. (Def.’s Reply 5:10–11.) Plaintiff proffers both deposition transcripts and specifically point to examples of the differences in the testimony given by each doctor: “Dr. Haronian is addressing this issue because he treated Plaintiff within the workers compensation system as her treating physician (see generally Exhibi[t] B [pages 12-17 of Dr. Haronian’s deposition].) and Dr. Farin specifically stated she is leaving the apportionment issue to Dr. Haronian. (See Exhibit A [page 19:8-20:3 of Dr. Farin’s deposition transcript].) As another example, Dr. Farin, as the neurosurgeon, will be discussing the findings on Plaintiff’s radiology films and will be showing the films to the jury during her testimony, whereas Dr. Haronian, while he may discuss the films generally, is not anticipated to go through the films with the jury. (See e.g. Exhibit A [page 13-14] and Exhibit B [page 13].)” (Pl.’s Opp. 3:6–14.)

Based on the foregoing, the Court agrees with Plaintiff that “the only thing Defendant puts before this Court in support of its motion is general designation language. This is not a basis for exclusion of either expert.” (Id. at 3:16–18.) Accordingly, the motion is denied.

CONCLUSION 

The motion is denied.

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  “The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at CHAdeptF51@LACourt.org or by telephone at (818) 407-2233.