Judge: Colin Leis, Case: 21STCV35648, Date: 2025-05-21 Tentative Ruling

 



 




Case Number: 21STCV35648    Hearing Date: May 21, 2025    Dept: 74

Edmunds v. Coleman 

Defendant Joshuan E. Coleman’s Motion to Exclude Expert Witness  

 

BACKGROUND 

This motion arises from a breach of contract action.

Plaintiff James Edmunds (Plaintiff) filed a complaint against defendant Joshua E. Coleman P/K/A Ammo (Defendant).

On May 8, 2023, Plaintiff served the demand for exchange of expert witnesses.  On May 30, 2023, Defendant served its expert witness disclosures, identifying one witness.  Plaintiff stated he did not intend to offer expert testimony.

On June 16, 2023, Plaintiff served a supplemental expert witness disclosure.

Defendant moves to exclude Plaintiff’s supplemental witness.

 

LEGAL STANDARD  

            A party may provide a supplemental expert witness list within 20 days of the exchange if the party supplementing the expert witness list for an expert “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.”  (Code Civ. Proc. § 2034.280(a).)

            Upon the timely objection of a party, the Court shall exclude the expert witness if the party has unreasonably failed to: (a) List that witness as an expert under Section 2034.260; (b) Submit an expert witness declaration; (c) Produce reports and writings of expert witnesses; and (d) make that expert available for a deposition under Article 3.  (Code Civ. Proc. § 2034.300.) 

 

DISCUSSION

             Defendant moves to exclude Plaintiff’s expert witness, Steven H. Ambers, on the grounds that Plaintiff failed to list the witness under California of Civil Procedure section 2034.260.

            On February 7, 2025, the Court denied (but then later that day vacated its denial of) Defendant’s ex parte application to strike the supplemental expert, a denial the Court subsequently readopted on April 1, 2025. (See Minute Order 4/1/25.) During discussion with counsel at the February 7 ex parte hearing, the Court did not bar Defendant from filing a regularly-noticed motion (in the then-wake of the Court’s denial during the hearing of the ex parte application) but cautioned Defendant that when the trial date was moved, no other dates were being moved.  (See Minute Order 2/7/25.)  The Court specifically noted that permission to file a motion does not establish the motion’s timeliness.

 

CONCLUSION

            The Court denies Defendant’s Motion filed April 10, 2025, to Strike Expert Witness because it is untimely.

            Defendant to provide notice.


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Defendant Joshuan E. Coleman’s Motion for Leave to Amend   

 

BACKGROUND 

This motion arises from a breach of contract action.

Plaintiff James Edmunds (Plaintiff) filed a complaint against defendant Joshua E. Coleman P/K/A Ammo (Defendant).  On March 25, 2022, Defendant filed his answer to the First Amended Complaint.

Defendant moves for leave to file an amended answer.

 

LEGAL STANDARD

Pursuant to Code of Civil Procedure section 473, subdivision (a)(1), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” Amendment may be allowed at any time before or after commencement of trial. (Code Civ. Proc., § 576.) “[T]he court’s discretion will usually be exercised liberally to permit amendment of the pleadings. The policy favoring amendment is so strong that it is a rare case in which denial of leave to amend can be justified.” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428 (internal citations omitted).) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend….” (Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530.) Prejudice includes “delay in trial, loss of critical evidence, or added costs of preparation.” (Solit v. Tokai Bank, Ltd. New York Branch (1999) 68 Cal.App.4th 1435, 1448.) 

A motion to amend a pleading before trial must include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments. (Cal. Rules of Court, rule 3.1324(a).) The motion must also state what allegations are proposed to be deleted or added, by page, paragraph, and line number. (Cal. Rules of Court, rule 3.1324(a).) Finally, a separate supporting declaration specifying the effect of the amendment, why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reason the request for amendment was not made earlier must also accompany the motion. (Cal. Rules of Court, rule 3.134(b).) 

DISCUSSION

            As a preliminary consideration, Defendant does not attach to his motion a copy of the proposed amended pleading.  The motion states Defendant’s intention to add an affirmative defense but does not identify the page, paragraph and line number of the addition.  Additionally, the supporting declaration fails to state the effect of the amendment, why it is necessary and proper, when the facts giving rise to the amendment were discovered, and why the request was not made earlier.  Defendant attempts in his reply to remedy his failure to comply with Rules of Court, rule 3.134(b) but the Court does not consider points raised for the first time in the reply unless good reason is shown for failure to present them before.  (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn.3.)  Defendant fails to state any good cause for why his motion failed to comply with the Rules of Court.

             CONCLUSION

            The Court denies Defendant’s Motion for Leave to Amend.

            Defendant to give notice.




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