Judge Daniel M. Crowley, Case 20STCV17331 2023-04-25 Tentative Ruling

Judge: Daniel M. Crowley, Case: 20STCV17331, Date: 2023-04-25 Tentative Ruling

Case Number: 20STCV17331 Hearing Date: April 25, 2023 Dept: 207

Background

This is a personal injury action in which Plaintiff Isac Hernandez Hernandez (“Plaintiff”) was injured while working at a construction site in Santa Monica, California. Defendant MRB Construction, Inc. (“MRB”) now brings a motion for leave of Court to augment its expert witness list to substitute a new pain management expert for the one it previously designated. Plaintiff opposes MRB’s motion.

Request for Judicial Notice

MRB requests the Court take judicial notice of two orders previously entered by the Court in this action. MRB’s request is unopposed and is GRANTED.

Legal Standards

Per Code of Civil Procedure section 2034.610, subdivision (a), “On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: [¶] (1) 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.” (Code Civ. Proc., § 2034.610, subd. (a)(1).)

In ruling on a motion to augment an expert witness designation, the court must take into account “the extent to which the opposing party has relied on the list of expert witnesses . . . ,” and must determine that the opposing party “will not be prejudiced in maintaining that party’s action or defense on the merits.” (Code Civ. Proc., § 2034.620, subd. (a)-(b).) Additionally, the court must determine that “[t]he 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 witness . . . ,” or that “[t]he 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: [¶] Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. [¶] 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.” (Code Civ. Proc., § 2034.620, subd. (c).) Finally, the moving party must “mak[e] the expert available immediately for a deposition.” (Code Civ. Proc., § 2034.620, subd. (d).) The court may also condition leave to amend on any other term the court deems just. (Ibid.)

Analysis

MRB served its expert designation on December 16, 2022, which did not include a pain management expert. On December 18, 2022, Plaintiff served his expert designation which did include a pain management expert. In response to Plaintiff’s designation, MRB served a supplemental expert designation on January 5, 2023, which designated Dr. Timothy Davis as its rebuttal pain medicine expert. MRB now moves for leave of Court to augment its expert witness list to replace Dr. Davis with Dr. Sten Kramer.

On February 27, 2023, MRB filed an ex parte application seeking this same relief. In that application MRB stated only “a subsequent conflict has arisen with Dr. Davis such that Defendants were required to retain Dr. Kramer as its proposed substitute pain management expert for trial” without providing any information as to the nature of the conflict, when it arose, or MRB’s diligence in discovering that conflict or seeking to augment its expert witness list. (Ex Parte at 4.) The Court denied the ex parte on March 1, 2023. The Court’s March 1 minute order states “The ex parte application for leave to amend expert witness list is denied because there is insufficient factual support for the relief requested.” The minute order directed moving party MRB to give notice, however, MRB did not file a notice of ruling. MRB instead waited a month and on April 3 filed the instant motion again seeking to replace Dr. Davis with Dr. Kramer.

MRB’s instant motion is in essence a motion for reconsideration of the prior order denying MRB’s ex parte. A motion for reconsideration must be made “within 10 days after service upon the party of written notice of entry of the order.” (C.C.P. § 1008(a).) The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration. (See C.C.P. § 1008(a); see also¿Mink v. Superior Court¿(1992) 2 Cal.App.4th 1338, 1342.) The instant motion was filed more than 10 days after the March 1 order denying MRB’s ex parte and is thus untimely. MRB does not cite any legal authority for its argument that the deadline extends indefinitely because it failed to give notice as ordered by the Court even though it plainly had knowledge of the ruling on its own ex parte. Nor is the Court aware of any such authority. Rather, “it has long been recognized that an order can be enforced against a party having knowledge of the order although it was not served at all.” (In re Imperial Ins. Co. (1984) 157 Cal.App.3d 290, 300.) MRB of course had knowledge of the ruling on its ex parte the day it was made, which satisfies the purpose of the statute. The timing requirements imposed by section 1008 are jurisdictional, and thus the Court cannot consider MRB’s untimely motion. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; C.C.P. § 1008(e) [“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders…. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section”].) This alone compels the denial of MRB’s motion.

Even if the Court were to ignore the untimeliness of MRB’s motion, MRB has not demonstrated any basis for reconsideration of the Court’s prior order. As MRB concedes, the only new circumstances or facts which could not have been included in MRB’s initial ex parte is the fact that on March 7, 2023, the Court continued the trial date in this action from March 13, 2023, to June 12, 2023. But MRB’s prior ex parte was denied because MRB failed to include a sufficient factual basis for the relief requested, not because of the potential prejudice to Plaintiff in granting that relief. If MRB believed this trial continuance was determinative of this issue, then it is unclear why MRB waited nearly a month to bring the instant motion rather than immediately filing a motion for reconsideration under section 1008 once the Court continued the trial date.

For these reasons, MRB’s motion is DENIED.

The same result follows even if the Court were to reach the merits of MRB’s motion. MRB’s instant motion provides additional factual details which it chose not to include in its prior ex parte application. MRB now specifies that that the conflict which necessitates Dr. Davis’ replacement is that Dr. Davis has previously been critical of the opinions of another MRB’s experts who is not identified in the motion. MRB states:

As we continued expert discovery and due diligence, including communications with two of MRB’s designated experts, we became concerned and questioned if Dr. Davis’s opinions were biased or tainted by his prior experience with another retained expert of MRB based on statements he was making during our communications. During these communications, Dr. Davis was critical of the opinions and the bases for these opinions of the other MRB expert, which were not within his expertise or within the scope of his engagement. Because of the statements made by Dr. Davis that appeared to demonstrate bias against the other MRB expert, I communicated with Dr. Sten Erik Kramer, a pain management specialist.

(Taylor Decl. at ¶4.) MRB acknowledges it first discovered this conflict “in late January.” (Shenian Decl. at ¶5.) MRB claims it nonetheless waited a month to seek to augment its list to replace Dr. Davis with Dr. Kramer because it needed to first depose Plaintiff’s expert witnesses. (Id. at ¶11.) MRB offers no explanation as to how the testimony of Plaintiff’s experts have any bearing on a conflict between its own experts. MRB also does not explain why it took a month to investigate this conflict once it became aware of it in January. In the absence of such facts, the Court cannot conclude MRB acted with reasonable diligence or promptness in bringing the instant motion as required by Code Civ. Proc. § 2034.620(c). This is a separate and independent basis which merits the denial of MRB’s motion.

Conclusion

MRB’s motion to augment its expert witness list is DENIED.