Judge: Audra Mori, Case: BC701108, Date: 2022-08-30 Tentative Ruling

Case Number: BC701108    Hearing Date: August 30, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Cristoval Garcia Chavez (“Plaintiff”) filed this action against Defendants Kevin Lemar Parrott, MV Transportation, Inc., and City of Los Angeles (collectively, “Defendants”) for damages arising from a motor vehicle accident vs. pedestrian accident.  

Plaintiff, at this time, moves to reopen expert discovery, or alternatively, to augment his expert designation.  Defendants oppose the motion.  Any reply was due on or before August 23, 2022; no reply has been received as of August 25, 2022.   

2. Motion to Reopen Discovery

Concerning a request to reopen discovery, CCP § 2024.050 states:

(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

Furthermore, CCP § 2034.610 governs motions to augment expert witness lists.  A party who has engaged in a timely exchange of expert witness information may move to add the name and address of a subsequently retained witness or to amend the statement of the testimony a previously designated expert is expected to give. The motion must be accompanied by a declaration showing a reasonable and good faith attempt at an informal resolution of each issue presented.  (CCP §2034.610.)

CCP § 2034.620 states:

The court shall grant leave to augment or amend an expert witness list or declaration 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.

(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:

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

(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.

(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.

Notably, granting or denial of relief in these cases lies within the court's sound discretion, and is subject to appellate review only for abuse of discretion.  (Bonds v. Roy (1999) 20 Cal.4th 140, 149.)

Here, Plaintiff asserts that on July 12, 2022, the parties designated their experts in a timely manner; however, Plaintiff provides that around this time Plaintiff’s counsel contracted Covid-19 and was unable to review Plaintiff’s entire file to provide a complete panel of experts.  Plaintiff further provides that two days after the parties’ designations, Plaintiff’s designated human factors expert, Jason Droll, advised that he was unavailable for the current trial date, so Plaintiff’s counsel hurriedly looked for substitute counsel and found Stephen Casner (“Casner”).  Plaintiff provides he has made numerous attempts to meet and confer regarding reopening expert discovery, but Defendants have not agreed to do so.

In opposition, Defendants provide they are not opposed to reopening expert discovery for the limited purpose of allowing Plaintiff’s late augmented expert, Casner.  Defendants contend they oppose reopening closed expert discovery, including allowing Plaintiff to designate experts who should have been designated as part of the initial expert designation.  Defendants argue that other than his replacement expert, Casner, Plaintiff does state what the purpose of reopening expert discovery is or explain any reasons for his inexplicable delay in promptly seeking leave to augment his experts.  Additionally, Defendants argue that reopening discovery to permit this additional discovery will affect the trial date and prejudice Defendants. 

As to Defendants’ contention that Plaintiff did not meet and confer prior to filing this motion, Plaintiff’s counsel’s declaration details communications between Plaintiff’s and defense counsel regarding reopening discovery and augmenting Plaintiff’s expert witness list.  (Mot.  Jalbuena Decl. ¶¶ 10-14.)  This is sufficient for the purposes of this motion.  (CCP § 2024.050(a).) 

Plaintiff seeks the ability to “re-designate a complete panel of his experts for trial.”  While Plaintiff’s counsel states that he was unable to review Plaintiff’s entire file to be able to provide a complete panel of experts to cover Plaintiff’s entire presentation of his case, Plaintiff does not articulate in what manner Plaintiff’s expert designation is incomplete other than providing that Plaintiff seeks to augment his expert list to add Casner.  Plaintiff does state what, if any, further expert discovery is necessary to complete or what further experts are necessary to Plaintiff’s case.  Rather, as Defendants argue, Plaintiff refers only his late designation of Casner because of the unavailability of his former human factors expert, and Plaintiff does not otherwise provide any information concerning any additional experts.  The Court will not reopen the entirety of expert discovery without sufficient information concerning the remaining expert discovery to be completed. 

However, Defendants do not oppose Plaintiff’s request to augment his expert list to include Casner.  Defendants do not claim any prejudice from allowing Plaintiff to augment his expert witness list to add Casner, and Plaintiff establishes that Plaintiff did not previously disclose that expert due to mistake, inadvertence, surprise, and/or excusable neglect.  Further, Plaintiff has served a copy of the proposed expert witness information concerning Casner on Defendants. 

Based on the foregoing, Plaintiff’s request for leave to augment his expert witness list designation is granted.  Plaintiff is to make Casner immediately available for deposition. 

Plaintiff is ordered to give notice. 

C61906

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 30^th day of August 2022