Judge: Colin Leis, Case: 19STCV24643, Date: 2025-03-05 Tentative Ruling

Case Number: 19STCV24643    Hearing Date: March 5, 2025    Dept: 74

Colorado Seasons, Inc. v. Norman Yatooma, et al.

Defendant Fleming & Borowicz’s Motion for Relief from Untimely Expert Witness Designation. 

On January 28, 2025, Fleming & Borowicz filed its Motion for Relief from Untimely Expert Witness (the “Motion”). Trial is currently scheduled for April 28, 2025.

LEGAL STANDARD

The court may permit tardy submission of expert witness lists and information if the following conditions are satisfied:¿ 

(a)   ¿The court has taken into account the extent to which the opposing party has relied on the absence of a 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 that the moving party did all of the following:¿ 

(1)   ¿ Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.¿ 

(2)   Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.¿ 

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

(d)   The order 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 Civ. Proc. § 2034.720.)¿ The motion must be accompanied by a meet and confer declaration.¿ (Code Civ. Proc. § 2034.710(c).)¿¿¿ 

DISCUSSION

            Fleming moves the court to allow a late submission of its expert witness designation because, while Plaintiff’s demand stated a designation date of December 16, 2024, the demand also referenced the April 28, 2025 trial date and counsel mis-calendared the date.  (Declaration of Maryam Karson (“Karson Decl.”), ¶7.)  On January 21, 2025, Fleming’s counsel retained an expert and served its expert witness designation.  (Id. at ¶19; Ex. 2.)  On the same day, January 21, 2025, Fleming’s counsel also met and conferred with Plaintiff’s counsel, asking if Plaintiff would accept the late expert witness designation, however Plaintiff’s counsel refused.  (Id. at ¶20; Ex. 11.) 

            Fleming’s Motion is granted based on the following. 

            First, the parties met and conferred in compliance with Code of Civil Procedure section 2034.710(c).  (Id. at ¶20; Ex. 11.) 

Second, the failure to submit a timely expert designation was the result of Fleming’s counsel’s mistake, inadvertence, surprise, or excusable neglect.¿ (Code Civ. Proc. § 2034.710(c)(1); Karson Decl. ¶7.)  Fleming promptly moved for relief because the mistake was discovered on January 9, 2025, and Fleming filed the Motion less than three weeks later on January 28, 2025.  (Code Civ. Proc. § 2034.710(c)(2); Karson Decl. ¶¶ 8-9.)  Also, Fleming promptly served a copy of the proposed expert witness information on Plaintiff on January 21, 2025, less than two weeks after discovering the mistake.  (Code Civ. Proc. § 2034.710(c)(3); Karson Decl. ¶19, Ex 2.)  Plaintiff contends that Fleming seeks relief from “intentional, in part strategic, decisions.” Plaintiff’s contention does not persuade the court because Plaintiff posits Fleming intentionally missed an expert designation deadline at the risk of not being able to designate at all should its motion for relief be denied, a proposition the court does not embrace.  Further, Plaintiff argues that Fleming did not act promptly, however the court disagrees as provided above.  

Third, there is no indication that Plaintiff has relied on the absence of an expert designation.  (Code Civ. Proc. § 2034.710(a).)  That is especially the case when no expert depositions have been taken; Plaintiff’s expert will not be deposed for at least another 2-3 weeks.  (Karson Decl. ¶¶ 17, 21, Ex. 10.)

Last, in terms of any prejudice, Plaintiff states in conclusory fashion that it has to “re-think its entire strategy at the eleventh hour” if the court grants the Motion.  Plaintiff has failed to clearly articulate how this is the case and what specific prejudice has actually been suffered.  Plaintiff has not even produced its own expert for a deposition.  Further, trial is not until the end of April.  

CONCLUSION

            Based on the foregoing, the court grants Defendant Fleming & Borowicz’s Motion for Relief from Untimely Expert Witness.

            Defendant shall give notice.