Judge Daniel M. Crowley, Case Number: 20STCV08577, Date: 2023-08-29 Tentative Ruling

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Defendants Mike Brown Grandstands, Inc.’s and Scott Northern’s motion for leave to augment their expert witness designation to designate Brian D. Avery, Ph.D. as their events management and event safety expert in substitution for Defendants’ currently designated expert, Bart Whitaker, is granted.

Defendants’ request for sanctions against Plaintiffs and their counsel of record, Christopher W. Wood, is denied.

Plaintiffs’ request for sanctions against Defendants Mike Brown Grandstands, Inc. and Scott Northern is denied.

Defendants Mike Brown Grandstands, Inc. (“Mike Brown”) and Scott Northern’s (“Northern”) (collectively, “Defendants”) move for leave to augment their expert witness designation to designate Brian D. Avery, Ph.D. (“Avery”), as their events management and event safety expert in substitution for Defendants’ currently designated expert, Bart Whitaker (“Whitaker”), on the grounds that Defendants’ currently designated events management and events safety expert, Whitaker, has recently advised defense counsel that, due to a personal matter, he will not be able to attend trial on this case. (Notice of Motion, pg. ii; C.C.P. §§2034.610 et seq.)

Defendants also move for sanctions against Plaintiffs Craig Nelson (“Craig”) and Stacy Nelson (“Stacy”) (collectively, “Plaintiffs”) and their attorney of record, Christopher W. Wood, in the amount of $2,060.00 for having to bring the instant motion. (Notice of Motion, pg. ii; C.C.P. §2034.630.)

The court shall 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.

(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.

(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.

Defendants have satisfied all of the conditions required to be granted leave to augment their expert witness designation. (C.C.P. §2034.620.) First, there is no potential prejudice to Plaintiffs or any other parties because the opposing parties have had ample opportunity to depose and respond to any new testimony by Avery. (See Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1478 [stating defendant’s originally designated expert gave deposition testimony damaging to defendant constituted sufficient “surprise” to permit defendant to augment his expert witness list, and granting defendant such relief did not cause any prejudice to opposing party].) The trial date of February 21, 2024, provides the parties opposing this motion enough time to respond to Avery’s opinions. (See Kennemur v. State of California (1982) 133 Cal.App.3d 907, 920 [“The [expert’s] deposition could have been taken after court hours, thereby avoiding any disruption of the trial proceedings.”].) Moreover, Avery’s opinions would be on the same topics that Whitaker would have opined on, which avoids the possibility of new topics being raised. Defendants argue they would make Avery available long before trial, providing the opposing parties ample time to respond to his opinions ahead of trial. Under the prejudice standard focusing on the opposing party’s ability to respond to the new expert’s testimony, there would be no prejudice to any party from granting this motion. (Dickison, 220 Cal.App.3d at pg. 1478.)

Further, when Whitaker’s unavailability to continue serving as Defendants’ expert became apparent, Defendants searched for a replacement expert, retained Avery, amended their expert witness designation accordingly, and met and conferred with the opposing parties regarding this issue.

Defendants could not have anticipated the need for an expert witness to replace Whitaker because his unavailability before trial was sudden and unexpected.

Assuming, arguendo, Defendants should somehow have determined their need for a new events management expert prior to receiving Whitaker’s notification, any failure to reach this determination before then would be deemed surprise or excusable neglect and does not bar Defendants from amending their expert witness designation. Whitaker’s unavailability for trial was a surprise, notwithstanding the fact that this information came from Defendants’ own expert, and because Whitaker’s notice of unavailability did not occur until the time of his scheduled deposition, Defendants’ failure to determine the need for a new events management expert should be deemed excusable neglect by defense counsel and Defendants should not be prejudiced by their attorneys’ excusable neglect.

Finally, Defendants have sought leave to augment promptly after deciding to call Avery as the proposed replacement expert witness. Defendants also include a copy of the proposed augmented expert witness designation with the present motion, thus providing it to all parties.

Accordingly, Defendant’s motion for leave to augment their expert witness designation to designate Avery as their events management and event safety expert in substitution for Defendants’ currently designated expert, Whitaker, is granted.

C.C.P. §2034.630 provides, “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

The Court declines to award sanctions against Defendants or Plaintiffs on this motion because it finds the circumstances of Whitaker’s unavailability make the imposition of sanctions on either party unjust.

Defendants’ and Plaintiffs’ request for sanctions against each other is denied.

Hon. Daniel M. Crowley

Judge of the Superior Court