Judge: Audra Mori, Case: 21STCV10152, Date: 2023-02-15 Tentative Ruling

Case Number: 21STCV10152    Hearing Date: February 15, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiffs Kevin Gomez (“Gomez”) and Heidi Keller (collectively, “Plaintiffs”) filed this action against defendants Edwin Antonio Manuel Espinoza and C & W Facility Services, Inc. (collectively, “Defendants”) for damages arising out of a motor vehicle accident.  Trial is currently set for March 16, 2023. 

At this time, Plaintiffs move for a protective order quashing Defendants’ demand for exchange of expert witnesses served December 28, 2022.  Plaintiff opposes the motion.  Any reply was due on or before February 7, 2023.  As of February 9, 2023, no reply has been filed.   

Plaintiffs provide that this action was previously set for trial on September 12, 2022, so the expert designation cutoff was July 25, 2022 under CCP § 2034.230(b), which is when the original exchange of expert witness information took place between the parties.  Plaintiffs assert that both sides identified expert witnesses in preparation for trial.  Plaintiffs provide that after multiple trial continuances, Defendants served a new demand for exchange of expert witnesses on December 28, 2022.  Plaintiffs argue that the Court did not allow for a new demand for designation of experts in any of its prior rulings, but Defendants are improperly seeking to hire new experts. 

In opposition, Defendants assert that their motion to continue trial that was granted on December 1, 2022, continued the expert discovery cutoff date to run with the new trial date.  Defendants assert that consistent with the ruling, they served their exchange of expert witness information, to which Plaintiffs objected.  Defendants contend that the issues concerning expert discovery were already decided, and that Plaintiffs do not show good cause for a protective order.   

2. Motion for Protective Order

a. Meet and Confer

CCP § 2034.250(a) states, “A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

In this case, Plaintiffs assert they have attempted to meet and confer with Defendants to resolve this dispute but were unable to do so.  (Mot. Mandell Mot. ¶¶ 7-8.)  This is sufficient to satisfy CCP § 2034.250. 

b. Analysis

CCP § 2034.250 provides in pertinent part:

(b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions:

(1) That the demand be quashed because it was not timely served.

…

Parties may arrange a date to exchange expert witness information, and the failure to abide by the requirements for doing so once a demand for exchange is made may result in exclusion of the expert. (CCP §§ 2034.210, 2034.300.)  “Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand 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.”  (CCP § 2034.220 (emphasis added).)  “The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 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.”  (CCP § 2034.230(b) (emphasis added).)  Parties may offer supplemental experts not listed in the initial exchange under the following conditions:

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.

(CCP § 2034.280(a).)

CCP § 2034.280 permits a supplemental designation responsive to the opposing party's designation if and only if the supplementing party has not previously retained an expert on the subject(s) in question.  There are, however, limitations on the use and, more importantly, abuse of the supplemental expert witness designation provisions of § 2034.280.  The legislatively preferred method of expert witness exchange is simultaneous and mutual.  (CCP § 2034.210.)  If the parties do not comply with the requirements of a mutual and simultaneous exchange of experts, the Court has the authority to strike any non-conforming expert witness designation in whole or part.  (CCP § 2034.300; see Osborne v. Todd Farm Service (2016) 247 Cal.App.4th 43, 46; Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021.) 

“Section 2034 requires a ‘simultaneous' exchange of information, in which each side must either identify any expert witnesses it expects to call at trial, or state that it does not intend to rely upon expert testimony. When it comes to issues that both sides anticipate will be disputed at trial, a party cannot merely ‘reserve its right’ to designate experts in the initial exchange, wait and see what experts are designated by the opposition, and then name its experts only as purported ‘rebuttal’ witnesses.”  (Fairfax v. Lords, supra, 138 Cal.App.4th at p. 1021, 41 Cal.Rptr.3d 850.)

Here, the parties simultaneously exchanged expert witness information on July 25, 2022, when trial was set for September 12, 2022.  The trial date was then continued multiple times.  Most recently, after Defendants’ motion to continue trial was granted, the trial date was continued from January 4, 2023, to March 16, 2023.  (Min. Order, Dec. 1, 2022.)  The order provided that “discovery concerning Plaintiffs’ ongoing medical treatment and expert discovery only” was to be based on the new trial date.  (Id.)  While Defendants argue that the order continuing the trial date to March 16, 2023, allowed Defendants to serve a new demand for exchange of expert witness information, Defendants cite no authority holding that a trial continuance allows a party to do such after the parties have already simultaneously exchanged expert witness information.  CCP §§ 2034.220 and 2034.230 contemplate the demand and exchange of expert witness information being timed in relationship to the “initial trial date.”  There is no mention of permitting parties to designate new expert witnesses based on a trial continuance after a simultaneous has already occurred, without the agreement of the parties or the issue being specifically briefed and specifically ordered.  This is true even if expert discovery cutoff dates are continued; continuing the deadlines in which to complete discovery is distinguishable from continuing the date for the simultaneous exchange of expert witnesses.    

When Defendants sought the order continuing the trial date to March 16, 2023, they did not specifically seek to change the long past expert designation deadline, and the court did not address changing it.  Rather, Defendants stated that the motion to continue trial was made on three grounds:  “1) due to new counsel for Defendants substituting into the case, 2) to allow the parties sufficient time to complete the remaining retained and non-retained expert depositions, and 3) to allow the parties sufficient time to explore settlement with new defense counsel.”  Indeed, as the parties had already engaged in a dispute about Defendants’ augmentation of their expert witness designation, the need to make any additional requests related to expert designation specifically should have been all the more clear.

Therefore, because Defendants’ December 28, 2022 expert designation was not timely served, Plaintiff’s motion is granted.  Defendants’ demand for exchange of expert witness information served December 28, 2022, is ordered quashed.  No sanctions are requested, and none are awarded. 

            Plaintiffs are ordered to give notice.  

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 15^th day of February 2023