Judge: Anne Hwang, Case: 20STCV43030, Date: 2023-09-14 Tentative Ruling

Case Number: 20STCV43030    Hearing Date: September 14, 2023    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 November 10, 2020, Plaintiff Kevin Sedighan (“Plaintiff”) filed a complaint against Defendant City of Los Angeles (“the City”) for damages after he allegedly fell over a pothole in the street.  

A jury trial was continued to December 4, 2023. The initial trial date was scheduled for October 16, 2023 and all discovery remained associated with that date. (Minute Order dated September 7, 2023.)  The demand for an exchange of expert trial witnesses therefore was due August 7, 2023. But on August 8, 2023, the City served their demand on Plaintiff—one day late. Plaintiff also did not serve any demand. The City now brings this motion for relief from failing to timely serve the demand. Plaintiff opposes and City replies.

LEGAL STANDARD

Under Code of Civil Procedure § 2034.210, after the initial trial date has been set, “any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other's expert trial witnesses.” This demand must be made “no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” (Code Civ. Proc. § 2034.220.)

A party who fails to timely serve a demand for an expert exchange cannot find relief from any provision in the Discovery Act. However, relief can be granted by a court under section 473(b). (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107 [finding that relief under section 473 can be granted when parties do not timely demand for an exchange of expert trial witnesses].) But relief under section 473 can only be granted in a discovery proceeding if the facts satisfy a showing of good cause. (Id. at 1108.) This rule is consistent with Code of Civil Procedure § 2034.230(b), which states that the date of the expert exchange must occur either 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, “unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.”  

To determine “good cause” in Zellerino, the court considered that the mistake was innocent, and the party took reasonable steps to correct it. (Id. at 1109.) Counsel attempted to reach an informal agreement, and when that failed, counsel promptly moved for relief. (Id.) The court also considered the lack of prejudice to the nonmoving party. (Id.)

DISCUSSION

The City argues that on August 8, 2023, it realized it had failed to serve its demand for expert exchange, and that it had not received a demand from Plaintiff. (Lee Decl. ¶ 6.) The City served its demand for expert exchange on August 8 and asked Plaintiff to treat it as served on August 7 in exchange for the City’s acceptance of Plaintiff’s belated demand. (Id. ¶ 7.) The City notes that even if it had timely served the demand, the time for expert designation would be the same because 20 days from August 7 fell on a Sunday, and argues therefore there is no prejudice. (Id. ¶ 9.)

Plaintiff argues Zellerino is distinguishable because in that case, there was a discrepancy in timing due to competing discovery regimes. (Opp. at p. 2.) Plaintiff further argues that counsel are seasoned attorneys who are aware of the necessity of calendaring and scheduling matters. (Opp. at p. 3.) Plaintiff further argues that at Plaintiff’s deposition, there were at least three defense attorneys present, and counsel could have served their demand at any time during the pendency of the litigation.

In reply, the City, now represented by new counsel, argues that now that the case has been continued, there is no prejudice for expert discovery to be continued to the new trial date. The City further argues that Plaintiff does not dispute that the failure to timely serve the demand was not the result of mistake, inadvertence or excusable neglect, and does not argue that he suffered any prejudice. (Reply at p. 2.)

The Court finds that the City has established good cause for relief. Although not expressly stated in counsel’s declaration, it appears that that failure to timely serve the City’s demand for expert exchange was due to counsel’s inadvertence. When counsel realized the error, the City promptly attempted to correct it, and then filed the motion. There does not appear to be prejudice to Plaintiff, particularly given that the trial date has been continued.

CONCLUSION AND ORDER

Therefore, the City’s Motion for Relief from Waiver of Demand for Expert Exchange is GRANTED. All expert discovery deadlines shall be associated with the December 4, 2023 trial.

The City shall provide notice of the Court’s order and file a proof of service of such.