Judge Anne Hwang, Case Number: 18STCV06368, Date: 2024-03-06 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

On November 28, 2018, Plaintiff Chad Keller (“Plaintiff”) filed a complaint against Defendants Joshua Franklin and Darryl Franklin (“Defendants”) for negligence arising from a motor vehicle accident. At a trial setting conference on December 3, 2020, trial and all related dates were scheduled for July 21, 2022.

On July 20, 2022, the Court granted Plaintiff’s ex parte application and continued trial to November 8, 2022.

On October 6, 2022, pursuant to stipulation, the Court continued trial and all related dates to March 1, 2023.

On January 27, 2023, pursuant to stipulation, the Court continued trial and all related dates to May 15, 2023.

On April 27, 2023, pursuant to stipulation, the Court continued trial to September 27, 2023. All discovery was closed except for the completion of expert witness depositions to be completed on or before September 1, 2023. The pre-trial motion cut off remained in effect except for motions related to expert discovery.

On September 15, 2023, pursuant to stipulation, the Court continued trial and all related dates to January 12, 2024. According to the stipulation, the parties required more time to complete expert depositions of the total 24 expert witnesses that were designated in this case. (9/15/23 Stip. ¶ 1.)

On December 27, 2023, pursuant to stipulation, the Court continued trial and all related dates to February 21, 2024. According to the stipulation, the parties required more time to complete expert depositions of the total 24 expert witnesses that were designated in this case. (12/27/23 Stip. ¶ 1.)

On February 6, 2024, pursuant to oral stipulation, the Court continued trial to March 5, 2024, with all discovery to remain closed. (2/6/24 Minute Order.)

On February 14, 2024, pursuant to stipulation, the Court continued trial and all related dates to April 2, 2024. According to the stipulation, the parties required more time to complete expert depositions of the total 24 expert witnesses that were designated in this case. (9/15/23 Stip. ¶ 1.) The Court indicated that there would be no further continuance.

Plaintiff now moves to strike Defendant’s second supplemental designation of expert witnesses. No opposition has been filed.

Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection¿of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:¿¿

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).¿¿

A supplemental expert witness may be used to designate counter experts in response to a designated subject.

(a) Within 20 days after the exchange described in Section 2034.260, any party who engaged in the 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.

The subject experts are rebuttal witnesses on a designated subject. Supplemental lists cannot be used to designate experts on new subjects. (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1026-1027; Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723.)

A party’s supplemental expert designation is proper where (1) the party seeking to supplement its expert designation complied with its disclosure obligations; (2) there is no indication it acted unreasonably or engaged in gamesmanship; and (3) there is no prejudice to the other party.¿ (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 498.)¿

As an initial matter, Plaintiff asks the Court to reopen discovery for the limited purpose of hearing this motion. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, [requiring the court to follow Code of Civil Procedure section 2024.050 before hearing a discovery motion past the discovery cutoff].) However, in light of the parties’ February 14, 2024 stipulation, the motion is timely.[1]

Turning to the merits, Plaintiff asserts that the parties simultaneously disclosed experts in response to exchanged demands on March 27, 2023. (Dembowski Decl. ¶ 3, Exh. A.) On January 22, 2024, Defendant served a supplemental disclosure. (Id. ¶ 4, Exh. B.) Therefore, it appears that Defendants did not comply with Code of Civil Procedure section 2034.280(a) since the supplemental disclosure took place more than 20 days after the initial exchange. There is no indication that Defendants filed a motion for leave to augment their expert witness list. Defendants do not oppose this motion.

Therefore, because Defendants supplemented their experts past the 20-day deadline, the motion to strike is granted. Since this is dispositive, the Court will not address Plaintiff’s remaining arguments.

Based on the foregoing, the Court GRANTS Plaintiff’s Motion to Strike Defendants’ Supplemental Expert Designation.

Plaintiff shall provide notice of the Court’s ruling and file a proof of service of such.

[1] Even if the motion was not timely, in determining whether to reopen discovery, the court must consider the necessity of and reasons for the additional discovery, the diligence or lack thereof by the party seeking to reopen discovery in attempting to complete discovery prior to the cutoff, whether permitting the discovery will prevent the case from going forward on the trial date or will otherwise prejudice any party, and any past continuances of the trial date. (See Code Civ. Proc., § 2024.050, subd. (b).) Here, since it is asserted that Defendants designated supplemental experts contrary to statute, and that Plaintiff acted diligently in bringing this motion, the Court would reopen discovery for the sole purpose of hearing the instant motion. Plaintiff’s counsel also provides a declaration that she attempted to meet and confer with Defendants’ counsel unsuccessfully. (Dembowski Decl. ¶ 5.)

DEPARTMENT	32
HEARING DATE	March 6, 2024
CASE NUMBER	18STCV06368
MOTIONS	Motion to Strike Second Supplemental Expert Designation
MOVING PARTY	Plaintiff Chad Keller
OPPOSING PARTY	None