Judge: Armen Tamzarian, Case: BC682157, Date: 2023-04-04 Tentative Ruling

Case Number: BC682157    Hearing Date: April 4, 2023    Dept: 52

Plaintiffs apply ex parte for an “order to private mediation or meaningful ADR before trial,” “for production of missing documents,” and to order defendant to produce witnesses and documents at trial. 

Plaintiffs fail to show the requisite exigent circumstances for ex parte relief. (Cal. Rules of Court, Rule 3.1202, subd. (c).) Additionally, plaintiffs' application fails on the merits.

ADR

          Plaintiffs provide no authority for the court to order defendant to participate in alternative dispute resolution.

Discovery Orders

Substantively, the order plaintiffs seek requiring defendant to produce missing documents constitutes an order to compel compliance with a statement of compliance in response to requests for production.  (CCP § 2031.320.)  Demanding that defendant provide contact information for witnesses is also an attempt to get an order for something plaintiffs should have obtained via discovery.

  A party has a right “to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”  (CCP § 2024.020(a).)  That deadline passed long ago.  Even if the court applied discovery deadlines based on the current trial date of April 19, the last day to hear discovery motions would be April 4.  There is not enough time to give defendant a meaningful opportunity to oppose plaintiffs’ motions.

Witnesses at Trial

Plaintiffs state they served notices to appear at trial under Code of Civil Procedure section 1987(b).  That procedure only applies to parties or “anyone who is an officer, director, or managing agent of any such party.”  Plaintiffs describe these witnesses as “middle manager/representatives.”  (Uchiyama Decl., ¶ 29.)  Plaintiffs fail to show they are officers, directors, or managing agents.  The common business use of the title “manager” is not the same as a “managing agent.”  That term “include[s] only those corporate employees who exercise substantial independent authority and judgment in their corporate decisionmaking so that their decisions ultimately determine corporate policy.”  (White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 566–567; Target National Bank v. Rocha (2013) 216 Cal.App.4th Supp. 1, 9, fn. 1 [applying rule from White v. Ultramar, Inc. to CCP § 1987(b)].)  Plaintiffs do not show these witnesses are managing agents.

The notice to produce documents is subject to the same requirement.  Code of Civil Procedure section 1987(c) does not provide “free standing authorization to obtain the production of records at trial.”  (Amoco Chemical Co. v. Certain Underwriters at Lloyd's of London (1995) 34 Cal.App.4th 554, 560.)  “[T]he right to request documents contingent upon the requesting party’s right to request the appearance of a party according to the procedure provided in subdivision (b).”  (Ibid.)

The application is denied.

Defendant/Cross-Complainant Starr Indemnity & Liability Company’s Motion to Disqualify Counsel

Defendant/cross-complainant Starr Indemnity and Liability Company (Starr) moves to disqualify Karen Y. Uchiyama as plaintiffs’ counsel.  Plaintiffs gave written consent to Uchiyama testifying at trial.  (Kihagi Decl., ¶ 21; Mwangi Decl., ¶ 12.)

            Courts have “discretion to disqualify a likely advocate-witness as counsel, notwithstanding client consent, where there is ‘a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process.’ ”  (Doe v. Yim (2020) 55 Cal.App.5th 573, 582 (Doe).)  In doing so, “a court must consider: (1) whether counsel’s testimony is, in fact, genuinely needed (2) the possibility [opposing] counsel is using the motion to disqualify for purely tactical reasons; and (3) the combined effects of the strong interest parties have in representation by counsel of their choice, and in avoiding the duplicate expense and time-consuming effort involved in replacing counsel already familiar with the case.”  (Id. at p. 583, internal quotes omitted.)         

First, Starr does not show Uchiyama’s testimony is genuinely needed.  Plaintiffs do not plan to call Uchiyama as a witness.  (Mwangi Decl., ¶ 10; Kihagi Decl., ¶ 19; Opp., pp. 6-7.)  Starr argues “Uchiyama’s testimony is clearly needed as the Kihagi Parties consistently defer to Uchiyama as their counsel handling their unlawful detainers” in the underlying cases “to evade providing direct responses,” so there “are no other witnesses” who can testify about plaintiffs’ “knowledge of the San Francisco Rent Ordinances” and their “cooperation issues” in the underlying lawsuits.  (Reply, p. 5.)  But a person is uniquely qualified to testify about what she herself knows.  If plaintiffs give evasive responses on the subject, their credibility will suffer.  They also necessarily know the facts regarding their cooperation in the prior actions.  Starr does not adequately demonstrate that Uchiyama has any unique personal knowledge that no other witness has. 

Starr’s reliance on People v. Donaldson (2001) 93 Cal.App.4th 916 is misplaced.  There, “the credibility of the key prosecution witness was the critical issue, as she was the only person who ever gave inculpatory information to law enforcement.”  (Id. at p. 919.)  At trial, however, that witness gave contradictory “exculpatory testimony.”  (Ibid.)  The prosecutor and witness had talked to each other before the preliminary hearing.  (Id. at p. 922.)  The witness testified that before the preliminary hearing, the prosecutor pressured her to testifying in accord with what the police report said.  (Ibid.)  The prosecutor called herself as a witness and testified she did not pressure the witness to testify in any manner other than to tell the truth.  (Id. at p. 924.)  On cross-examination, the prosecutor testified she believed the witness told the truth when she gave the inculpatory information.  (Id. at pp. 925-926.)  The prosecutor’s testimony amounted to a “challenge to” the key witness’s credibility and “was ‘highly relevant’ ” because the witness’s inculpatory “pretrial statements were the ‘heart of the prosecution’s case.’ ”  (Id. at p. 931.) 

Here, though Uchiyama has personal knowledge of some relevant facts, she will not “be a key witness at trial.”  (Doe, supra, 55 Cal.App.5th at p. 582.)  Neither side’s case substantially depends on her testimony.  This proceeding will be fair and will maintain its integrity even if Uchiyama serves as both advocate and witness or simply does not testify. 

Second, based on the facts in the record, the court can make an inference that Starr’s counsel is possibly using this motion purely for tactical reasons.  Though Starr contends Uchiyama’s dual role would prejudice it, Starr bears the primarily responsibility for creating that problem.  Starr has a simple solution: not calling her as a witness.  Plaintiffs filed this action in November 2017.  Their time to bring this action to trial continues to dwindle.  Since August 2022, two different law firms representing plaintiffs moved to be relieved as counsel.  Plaintiffs have had great difficulty in retaining and keeping counsel.  Starr knows that disqualifying Uchiyama could be very advantageous.

Moreover, Starr exaggerates the risk of prejudice to it and minimizes the substantial possibility that Uchiyama’s dual role would prejudice plaintiffs.  (See Lopez v. Lopez (2022) 81 Cal.App.5th 412, 425 [reversing order of disqualification where trial court found attorney’s “dual role would impair his credibility as a witness … and diminish his effectiveness as an advocate”].)  Uchiyama serving as both a witness and advocate could impair her credibility and effectiveness as an advocate because the jury may find she has an unusually strong interest in vindicating her own actions in the underlying cases.  If Starr successfully impeaches Uchiyama’s testimony, that may also influence the jury not to believe her arguments as an advocate.  It thus comes as no surprise that plaintiffs do not intend to call Uchiyama as a witness, but defendant wishes to do so.    

Third, the court concludes plaintiffs’ interest in representation by counsel of their choice and the interest in efficiency justifies not disqualifying Uchiyama.  This case has been pending for years, and plaintiffs have had trouble finding counsel.  Disqualifying Uchiyama on the eve of trial will prejudice plaintiffs and may result in substantial delay.  These factors easily outweigh any potential prejudice to Starr.

After considering all relevant factors, the court finds that Uchiyama serving as both witness and advocate would not prejudice Starr or injure this proceeding’s integrity.

Defendant/cross-complainant Starr Indemnity and Liability Company’s motion to disqualify plaintiffs’ counsel Karen Y. Uchiyama is denied.

Defendant/Cross-Complainant Starr Indemnity & Liability Company’s Motion to Strike and Exclude Experts

Defendant/cross-complainant Starr Indemnity and Liability Company moves to strike and exclude plaintiffs Zoriall, LLC, Anne Kihagi, and Christina Mwangi’s experts Sandra Moriarty AIC, API, and Edith Horner, C.P.A. 

Exclusion of Experts

Parties must “exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand” for disclosure.  (CCP § 2034.260(a).)  “The exchange of expert witness information is a ‘critical event’ in the course of civil litigation.”  (Huntley v. Foster (1995) 35 Cal.App.4th 753, 755-756.)  “‘Late disclosure of experts ... frustrates the very purposes of the discovery statutes, and should be permitted, with appropriate safeguards and limits, only when absolutely necessary to avoid a miscarriage of justice.’ ”  (Bonds v. Roy (1999) 20 Cal.4th 140, 147.)

“[O]n 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: (a) List that witness as an expert under Section 2034.260.  (b) Submit an expert witness declaration.”  (CCP § 2034.300.)

“The party cannot do nothing and then insist that the replacement expert can be called at trial on the ground that the party’s failure to list the replacement expert when expert witness information was exchanged was not ‘unreasonable.’  Nor can the party comply with the statute by unilaterally, without leave of court and at any time the party chooses, simply serving a so-called ‘supplemental’ expert witness designation listing the new replacement expert.”  (Richaud v. Jennings (1993) 16 Cal.App.4th 81, 90–91.)  An expert not designated as required by the Discovery Act “should not be permitted to testify, over objection, when the party seeking to call the [new] expert has failed to move to augment that party’s expert witness list to include the [new] expert.”  (Id. at p. 92.)

Plaintiffs’ conduct is equivalent to what Richaud prohibits.  The parties exchanged information concerning expert witnesses in July 2022.  (Mandegary Decl., ¶ 12, Ex. D.)  Plaintiffs designated only Charles M. Miller, Esq. as a retained expert.  (Ibid.)  On February 9, 2023, plaintiffs served a new disclosure of expert witnesses designating Moriarty and Horner.  (Id., ¶ 17, Ex. G.)  They attempted to designate new experts unilaterally long after the deadline without first moving for leave of court under the applicable section of the Discovery Act. 

The court therefore will exclude Moriarty and Horner from testifying at trial.  

Opposition as Motion for Leave to Add Experts

Plaintiffs ask the court to consider their opposition a motion for leave to replace their designated expert witnesses.  “On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to … [a]ugment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.”  (CCP § 2034.610(a).)  Such a motion “shall be made at a sufficient time in advance of the time limit for the completion of discovery …. to permit the deposition of any expert to whom the motion relates to be taken within that time limit.  Under exceptional circumstances, the court may permit the motion to be made at a later time.”  (CCP § 2034.610(b).) 

“Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to” an expert witness “on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.”  (CCP § 2024.030.)  The date initially set for trial has long passed. 

Even if the court calculated the deadline based on the current trial date of April 19 and treated plaintiffs’ opposition as a motion for leave, it would be untimely.  Plaintiffs electronically served and filed their opposition on March 23, 2023 (though it was due March 21).  The proof of service executed on March 23 also states the opposition would be served by personal delivery on March 24.  Allowing regular notice of 16 court days (CCP § 1005(b)) after March 24 would result in a hearing on April 18—the day before trial.  The court therefore could only permit such a motion upon exceptional circumstances.

Plaintiffs do not demonstrate such exceptional circumstances.  Plaintiffs assert that in January 2023, they discovered their previously designated expert, Charles Miller, would be unavailable for trial in April.  (Uchiyama Decl., ¶ 6.)  This statement is not credible.  Plaintiffs’ prior counsel notified Starr they were no longer retaining Miller on January 23.  (Mandegary Decl., ¶ 16, Ex. F.)  And until January 27, the trial was set for February 19.  On January 27, the court continued the trial to April 4.  Then, on March 14, the court again continued the trial to April 19.       

Plaintiffs also argue Starr strategically filed this motion on March 9, then took Horner’s and Moriarty’s depositions off calendar on March 16.  (Uchiyama Decl., ¶ 15.)  Starr, however, explains it took their depositions off calendar because plaintiffs had not produced the documents requested three business days before the depositions as required under Code of Civil Procedure section 2034.415.  (Supp. Mandegary Decl., ¶ 7(b), Exs. K, L.)  Starr had legitimate reasons, aside from this motion, to cancel the depositions.   

Sanctions

Starr moves for $3,300 in sanctions against plaintiffs.  The court finds that, though plaintiffs misused the discovery process, they acted with substantial justification.  They acted in good faith in giving Starr appropriate notice of their newly retained experts and an opportunity to depose them.  The record does not indicate that plaintiffs strategically waited to designate Moriarty and Horner to surprise Starr.  Plaintiffs served the untimely designation of experts on February 9, 2023, the same day their new counsel substituted into this action.  They did not follow the required procedures, but plaintiffs legitimately tried to give Starr as much notice as possible, in accordance with the purpose of the Discovery Act. 

Disposition

Defendant/cross-complainant Starr Indemnity and Liability Company’s motion to strike and exclude plaintiffs/cross-defendants Zoriall, LLC, Anne Kihagi, and Christina Mwangi’s experts Sandra Moriarty and Edith Horner is granted. 

The court hereby strikes plaintiffs’ designation of expert witnesses Moriarty and Horner.  The court hereby excludes Moriarty and Horner from testifying at trial.