Judge: Anne Hwang, Case: 20STCV38736, Date: 2024-05-08 Tentative Ruling

Case Number: 20STCV38736    Hearing Date: May 8, 2024    Dept: 32

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. 

TENTATIVE RULING

BACKGROUND

On October 8, 2020, Plaintiff Teresa Austin (“Plaintiff”) filed a complaint against Defendant Elizabeth Jane Downe and Does 1 to 100 for negligence related to a motor vehicle accident. 

On March 19, 2024, the Court, pursuant to written stipulation, continued trial to September 4, 2024. The discovery/motion cut-off is closed and the pre-trial motion cut-off remains in effect. (Min. Order, 3/19/24.)

On March 13, 2024, Defendant Elizabeth Jane Downe (“Defendant”) filed the instant motion to augment her expert witness list to replace Karthik Kumar, M.D. and to substitute Lawrence Harter, M.D. as her expert radiologist. No opposition has been filed.

LEGAL STANDARD

On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to (1) augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained; and/or (2) amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.¿ (Code Civ. Proc., § 2034.610, subd. (a).)¿ This motion shall be made a sufficient time in advance to permit the deposition of any expert to whom the motion relates to be taken before the discovery cut-off, unless exceptional circumstances exist.¿ (Code Civ. Proc., § 2034.610, subd. (b).)¿ The motion shall be accompanied by a meet and confer declaration.¿ (Code Civ. Proc., § 2034.610, subd. (c).) ¿

The court may grant leave to augment or amend an expert witness list only if all of the following conditions are satisfied:¿¿

 (a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.¿

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.¿

(c) The court has determined either of the following:¿

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.¿

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(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:¿

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(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.¿

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(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.¿

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(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.¿

(Code of Civ. Proc. § 2034.620.)¿

DISCUSSION

Defendant asserts she served her initial expert designation on December 21, 2022, designating Karthik Kumar as an expert radiologist. Since then, trial has been continued multiple times. On February 28, 2024, Dr. Kumar informed Defendant he was retiring and is no longer available to testify at trial. (Cain Decl. ¶ 4.) Defendant seeks to replace him with Dr. Lawrence Harter, who is a radiologist in the same office as Dr. Kumar. Defendant argues there is no prejudice to Plaintiff since Plaintiff never sought to depose Dr. Kumar.

However, the discovery/motion cut-off in this case is closed. Any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30^th day, and to have motions concerning discovery heard before the 15^th day, before the date initially set for the trial of the action. (Code Civ. Proc.§ 2024.020 (a).)¿ A trial court abuses its discretion in hearing a discovery motion past the deadlines in Code of Civil Procedure section 2024.020 when it does not require the party to file a motion for leave to reopen discovery under section 2024.050. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568, 1588.)  

Here, though Defendant cites section 2024.050 in the notice of motion, the notice does not ask to reopen discovery and the memorandum of points and authorities does not discuss the relevant factors the court must consider before hearing a discovery motion past the cut-off. Therefore, the Court may not hear this motion.

However, Defendant indicates that Plaintiff would not agree to a stipulation to substitute the expert unless Defendant agreed to a trial continuance until September 2024. (Cain Decl. ¶ 9.) Seeing as trial has now been continued to September 4, 2024, the parties are encouraged to meet and confer to stipulate about allowing the expert substitution. If unsuccessful, any motion to augment the expert designation must also move for and provide sufficient discussion regarding reopening discovery under section 2024.050 for the purpose of hearing that motion.

CONCLUSION AND ORDER

Therefore, Defendant’s motion for Leave to Augment her Expert Witness Designation is DENIED as procedurally defective.

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