Judge: Craig Griffin, Case: Hatch v. Lydic et al, Date: 2022-11-07 Tentative Ruling

The Motion for Order Granting Leave to Submit Tardy Supplemental Expert Witness Information filed by defendants Roberta Lydic and Edward Lydic (“Defendants”) is GRANTED IN PART, and CONDITIONALLY GRATNED IN PART.

Under C.C.P. § 2034.720, the conditions for relief are satisfied, with one partial exception, as addressed below.

First there is no showing of detrimental reliance by Plaintiff on the absence of a timely supplemental designation, nor does that seem plausible since Defendants’ error was noted on the day it was due. (Korlaar Decl. ¶ 16.)  Nor is there a showing of prejudice to Plaintiff in maintaining his case if relief is granted: that the designation may prevent prejudice to the defense does not equate to a showing of prejudice to Plaintiff. 

The Motion adequately demonstrates that Defendants’ failure to timely submit a supplemental designation was due to an excusable calendaring mistake. (Korlaar Decl., ¶ 15.) The circumstances here are thus unlike those in Fairfax v. Lords (2006) 138 Cal.App.4th 1019, which involved a strategic decision by the defense to not initially designate retained experts, and instead wait to consider the plaintiff’s retained expert designations. (Id. at 1024-1025.) Here, the defense did make initial retained expert designations. And unlike Fairfax, it does not appear unreasonable for the defense here to have failed to initially designate experts in the subject areas at issue.

The Motion also demonstrates that relief was promptly sought, after attempts to confer as to the error had been made and availability for depositions had been determined, and a proposed supplemental designation was served before seeking relief and is included with the Motion. (Id. at ¶¶ 16-18 and Ex. 5.) Defendants have also shown that one of the two proposed supplemental experts (Mr. Randles) is immediately available for deposition. (Id. at ¶ 20.) 

However, Defendants assert that the other proposed supplemental expert, Mr. Freedland, is not available for a deposition until mid-January.  That will not do. Relief under C.C.P. § 2034.720(d) requires that the expert be made “available immediately” for deposition. The Court will thus grant the Motion, but condition relief as to the designation of Mr. Freedland on the defense making him available for deposition immediately. Counsel should be prepared to discuss potential dates for that deposition within the next two weeks at the hearing. Otherwise, the motion will be DENIED as to Mr. Freedland.

Defendants are also to pay for the additional costs for expediting transcripts for the depositions of these experts.  In addition, Plaintiff may request a brief continuance for the trial if that is desired in light of the tardy designation: counsel for Plaintiff should inform the Court at the time of the hearing if that is desired.

Defense counsel is to give notice.