Judge Cynthia A Freeland, Case 37-2022-00010632-CU-WT-NC 2023-08-31 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2022-00010632-CU-WT-NC, Date: 2023-08-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - August 24, 2023

08/25/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited Wrongful Termination Motion Hearing (Civil) 37-2022-00010632-CU-WT-NC BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Augment Expert Witness List, 08/01/2023

Defendant Solana Beach School District ('Defendant')'s motion to augment expert designation is granted.

California Code of Civil Procedure §§ 2034.610 et seq. governs the procedures a party must follow if he or she wishes to augment his or her expert witness list. See Boston v. Penny Lane Centers, Inc. (2009) 170 Cal. App. 4th 936, 951. In relevant part, a party who has engaged in a timely exchange of expert witness information may seek leave of court to do either or both of the following: '(A) Augment that party's expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. (2) Amend that party's expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.' Cal. Code Civ. P. § 2034.610(a). A motion to augment an expert designation under CCP § 2034.610(a) 'shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.' Cal. Code Civ. P. § 2034.610(b). The court must 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.

Calendar No.: Event ID: TENTATIVE RULINGS

2996683 CASE NUMBER: CASE TITLE: BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT 37-2022-00010632-CU-WT-NC (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.

Cal. Code Civ. P. § 2034.620.

On April 28, 2023, Defendant and Plaintiff Lisa Busalacchi-Ryder ('Plaintiff') exchanged expert witness designations. Plaintiff has designated Heather H. Xitco, as Plaintiff's economic expert who will testify regarding causation and damages including, inter alia, Plaintiff's claimed economic damages and other related topics pertaining to the economic losses Plaintiff has incurred. Defendant has designated two expert witnesses: Steven Schenk and Matthew F. Carroll. Mr. Schenk has been designated as Defendant's economic expert who will testify regarding the issue of Plaintiff's economic damages including, inter alia, Plaintiff's lost earnings, property valuation, and other related economic loss Plaintiff has claimed. Dr. Carroll has been designated as Defendant's forensic psychiatrist who will testify concerning the nature and extent of Plaintiff's allegations and claimed injuries, including Dr. Carroll's diagnosis and prognosis concerning Plaintiff's condition(s). Dr. Carroll will address the reasonableness and necessity of the medical treatment Plaintiff has received, whether that treatment is related to, or caused by, Plaintiff's injuries, and any future care Plaintiff may require. Dr. Carroll will also discuss Plaintiff's underlying psychiatric condition and whether the alleged incident(s) are connected to the injuries that are the subject of this action. See Defendant's Notice of Lodgment ('NOL'), Ex. B.

Defendant now moves under CCP § 2034.610(a) for an order permitting it to augment its expert designation to include Behnush B. Mortimer as Defendant's vocational rehabilitation and consulting expert. Dr. Mortimer intends to provide testimony concerning the nature and extent of Plaintiff's vocational damages caused by the subject incident including, inter alia, Plaintiff's education, employability, earnings potential, earning capacity, promotability, skills, work life expectancy, disabilities, limitations, restrictions, accommodations, programs, training, vocation, and causation relating to and in connection with Plaintiff's claimed injuries. Ibid., Ex. F.

The court finds that Defendant has demonstrated entitlement to the requested relief. First, the court finds that Plaintiff has not, to date, extensively relied upon the parties' expert witness lists. Plaintiff contends that she chose not to retain any additional experts by the May 12, 2023 second expert exchange deadline in reliance upon the experts that Defendant designated on April 28, 2023. However, Plaintiff provides no explanation for why she did not independently choose to retain a vocational rehabilitation expert, especially given that Plaintiff, by her own admission, knew as early as October 28, 2022, that she would be basing her economic damages on a claim that she will never be able to obtain employment in a capacity that would permit her to meet or exceed the salary she received from Defendant during her last year as principal at Carmel Creek Elementary School ('Carmel Creek'). See Plaintiff's Opposition, Exs. A-B. Furthermore, to date, no expert depositions have been completed by either party. Ms. Xitco will still have an opportunity to update her report to respond to any opinion(s) proffered by Dr. Mortimer.

Second, the court finds no prejudice in permitting Defendant to augment its expert designation. To the extent Plaintiff argues that she will incur additional litigation costs in having to retain her own vocational rehabilitation expert and for Ms. Xitco to update her initial report, such argument is not well taken as such costs are inherent in all civil actions. Moreover, Defendant has indicated that it will make Dr.

Mortimer immediately available for deposition. Defendant's counsel has also offered Plaintiff's counsel an opportunity to augment Plaintiff's expert designation and to accommodate Plaintiff's need to conduct the expert discovery necessary to prepare the case for trial. See Defendant's NOL, Ex. G. In addition, with an October 6, 2023 trial date, there will be ample time for Plaintiff to retain a vocational rehabilitation expert and conduct the necessary discovery.

Calendar No.: Event ID: TENTATIVE RULINGS

2996683 CASE NUMBER: CASE TITLE: BUSALACCHI-RYDER VS SOLANA BEACH SCHOOL DISTRICT 37-2022-00010632-CU-WT-NC Finally, Plaintiff's argument that Defendant should not be granted the requested relief because Defendant should have known, through discovery, that it needed to designate a vocational rehabilitation expert, is unavailing. Plaintiff's initial assertion in this case was that she would lose income until she obtained employment comparable to her position as principal of Carmel Creek. The court must respectfully agree with Defendant that this is different from the position Plaintiff took during her June 20, 2023 mediation and by way of Ms. Xitco's June 26, 2023 report, viz., that Plaintiff would never obtain employment comparable to her job with Defendant. This claim also merits further discovery in light of Plaintiff's new job, the details of which remain unclear. As such, the court agrees with Defendant that, based on the evidence before the court, Defendant could not have determined that it would be necessary to retain and designate a vocational rehabilitation expert in this matter until after the first and second expert exchange deadlines.

In light of the foregoing, the court grants Defendant's motion to augment expert designation.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, August 25, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of August 25, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

Calendar No.: Event ID: TENTATIVE RULINGS

2996683