Judge: Colin Leis, Case: 20STCV03304, Date: 2024-07-09 Tentative Ruling

Case Number: 20STCV03304    Hearing Date: July 9, 2024    Dept: 74

MOVING PARTY:                Defendants RRM Properties, Ltd. and Robertson’s Ready Mix, Ltd.

RESPONDING PARTY:       Plaintiff Los Angeles County Metropolitan Transportation Authority

Motion for Leave to Supplement List of Expert Witnesses

The court considered the moving papers, opposition, and reply in connection with this motion.

BACKGROUND

            Plaintiff Los Angeles County Metropolitan Transportation Authority filed its complaint in eminent domain against defendants RRM Properties, Ltd.; H.D. Nogle & Sons, Inc.; Helena A. Hartfield; Frank K. Lyon; Ben Shiffman; William G. Isaac; Consolidated Rock Products Co.; Calmat Co.; Roberts Ready Mix, Ltd.; and all persons known or unknown, on January 27, 2020.

            Plaintiff seeks to acquire various property interests belonging to Defendants according to its power of eminent domain under the Public Utilities Code, section 130050 et seq., “for the Rosencrans/Marquardt Grade Separation Project and for public transportation purposes and all uses necessary, incidental or convenient thereto.” (Compl., ¶ 3 and Exh. 1 [description of property interests].)

            Three defendants did not answer, and five have been dismissed. The remaining two, RRM Properties, Ltd. and Robertson’s Ready Mix, Ltd. (together “Defendants”) answered on March 11, 2020.

            Jury trial is set for August 19, 2024.

            On May 23, 2024, Defendants filed the instant motion for an order granting leave to supplement its list of expert witnesses. They seek to designate Michael Orozco, P.E., a civil engineer employed by RRM, as an expert witness for examination at trial.

On June 24, 2024, Plaintiff opposed. On July 1, 2024, Defendants replied.

LEGAL STANDARD 

            Code of Civil Procedure section 1258.290 governs the amendment of an expert witness list post-exchange in an eminent domain proceeding. The section permits the court to grant leave for such an amendment “if the court finds that such party has made a good faith effort to comply with Sections 1258.210 to 1258.260, inclusive, that he has complied with Section 1258.270, and that by the date of exchange he:

(1) Would not in the exercise of reasonable diligence have determined to call such witness or discovered or listed such opinion or data; or

(2) Failed to determine to call such witness or to discover or list such opinion or data through mistake, inadvertence, surprise, or excusable neglect.”

(Code Civ. Proc., § 1258.290(a).)

            “In making a determination under [section 1258.290], the court shall take into account the extent to which the opposing party has relied on the list of expert witnesses and statements of valuation data and will be prejudiced if the witness is called or the testimony concerning such opinion or data is given.” (Id., subd. (b).)

DISCUSSION 

            1. Compliance with Sections 1258.210 through 1258.260

            Defendants argue they made good-faith efforts to comply with Code of Civil Procedure sections 1258.210 through 1258.260 and have complied with section 1258.270. Plaintiff does not directly contest their actual compliance prior to the date of the hearing, and it is not necessary for the Court to examine their compliance to dispose of this motion. Plaintiff prevails on other grounds – in particular, Defendants’ failure to exercise diligence, discussed below.

            2. Reasonable Diligence or Mistake

The Code requires the Court to find that Defendants could not have uncovered the need for their proposed expert with due diligence, or that they failed to initially designate their expert due to mistake, inadvertence, etc. (Code Civ. Proc., § 1258.290(a)(1)-(2).)

Defendants have not shown either.

Defendants repeatedly argue they would have produced Orozco as their person most knowledgeable for deposition, but Plaintiff did not proceed with that deposition, which Defendants contend shows Defendants “complied in good faith with the expert exchange statutes”. (Mot., 2:25; Madueno Decl., ¶ 24.) But Defendants’ willingness to produce Orozco as a PMK (a fact witness) is not the same as designating him as an expert. Defendants do not explain why Plaintiff had to take Orozco’s deposition in order for Defendants to identify him as an expert.

Defendants’ counsel’s declaration establishes that numerous depositions took place – and, in particular, depositions of other expert witnesses – from at least January 4, 2023. (Madueno Decl., ¶ 10 [“I took the deposition of Metro’s designated fixtures and equipment appraisal expert”].) Defendants do not explain why, if as they anticipate Orozco will be testifying as a fact witness, and they had considered which experts will testify, they did not further designate Orozco as an expert witness, or did not move to supplement earlier.

In short, Defendants could have uncovered the need for Orozco’s designation earlier by exercising due diligence.

Defendants have also not shown mistake, inadvertence, surprise, or excusable neglect. Counsel testifies “[n]either [she] nor [her] office intentionally or knowingly failed to designate” Orozco as an expert. (Madueno Decl., ¶ 23.) This is not the standard. Lack of intent is not the same as excusable neglect.

The Court must make one of the findings described in section 1258.290, subdivisions (a)(1) and (2), in order to grant Defendants’ motion. The Court cannot do so. Defendants’ motion must be denied.

            3. Reliance and Prejudice

                        a. Reliance

            The statutory date for expert exchange was November 16, 2022, more than eighteen months ago. Plaintiff has spent a year and a half preparing for trial while relying on Defendants’ designation list. This reliance is substantial, particularly given that the case is set for trial only forty-one (41) days from the date of this ruling.

                        b. Prejudice

            Defendants apparently intend to call Orozco at trial based on his percipient knowledge of relevant facts. But Defendants have already designated an expert – James Roberts – to testify to the opinions he formed based on Orozco’s personal knowledge. If Orozco is also permitted to testify to the same, Defendants will be permitted to duplicate their expert testimony and bolster the credibility of a fact witness, to Plaintiff’s detriment and on short notice.

CONCLUSION

            Based on the foregoing, the court DENIES Defendants’ motion.

            Plaintiff is ordered to give notice of this ruling.