Judge: David A. Hoffer, Case: 30-2016-889753, Date: 2022-11-21 Tentative Ruling

Plaintiff Richard Kerns’ (“Plaintiff”) motion to augment his expert witness designation is GRANTED.

Pursuant to Code of Civil Procedure section 2034.610, subdivision (a)(1), on the motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to 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.

This motion shall be made a sufficient time in advance of the time limit for the completion of discovery (the 15th day before the date initially set for trial) to permit the deposition of any expert to whom the motion relates to be taken within that time limit.  (Code Civ. Proc. §§ 2034.610, subd. (b) and 2024.020, subd. (a).)  Under exceptional circumstances, the court may permit the motion to be made at a later time.  (Code Civ. Proc., § 2034.610, subd. (b).) 

Additionally, pursuant to Code of Civil Procedure section 2034.620, the court shall grant leave to augment or amend an expert witness list 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.

(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.

Factors a Court may consider to determine whether the opposing party will suffer prejudice include:  (1) the time in which the opposing party has to prepare for the new expert’s technical testimony; and (2) the opposing party’s reliance on the existing witness list, which may affect the opposing party’s time and opportunity to conduct expert discovery and respond to the expert testimony.  (Dickison v. Howen, 220 Cal.App.3d at 1478-1479.)  A Court may properly find no prejudice where the opposing party is given every opportunity to recover from any disadvantage caused by the surprise and has the ability to respond to the expert’s testimony.  (Id., at 1479.)  “The determination of prejudice…turned on the party’s ability to respond to the new testimony.”  (Id.) 

Here, Plaintiff contends that he was only given two weeks’ notice that his essential expert, James Skorheim, a CPA, had to retire due to unforeseen health reasons. In addition, it has taken some time to find and retain a new expert.  The new expert is Jamie Holmes, a CPA.  Plaintiff moved as soon as practicable to obtain relief and Defendants do not stipulate to the relief requested.

Defendant On Target opposes the instant motion on the grounds that Plaintiff did not participate in a timely expert exchange and Defendant has suffered prejudice by this late motion because trial is currently set for 11/28/22 and the hearing date on this motion is 11/21/22. In addition, Defendant claims to have suffered financial harm because it has already incurred time and expense in addressing the deposition of Mr. Skorheim. Thus, if the motion is granted, Defendant requests reimbursement of its attorney’s fees and costs in the amount of $32,006.20 in relation to Mr. Skorheim.

The declaration of counsel accompanying the motion states that counsel was only given 2 weeks’ notice of Mr. Skorheim’s retirement and he appears to have moved for relief quickly.  Although the motion is brought at a late hour, the timing of Mr. Skorheim’s retirement, roughly a month before trial, is an unforeseen circumstance.  Further, continuing trial would sufficiently resolve any prejudice in permitting the augmented designation. 

As to Defendant’s argument that Plaintiff’s expert designation was untimely, as noted by Plaintiff in Reply, Plaintiff designated experts on two occasions, served an objection that stated Plaintiff already designated an expert, and Defendant took Mr. Skorheim’s deposition. 

Accordingly, Plaintiff’s motion is granted, subject to the following conditions: 

(1) Plaintiff shall designate Jamie Holmes, CPA, within 3 days;

(2) Plaintiff must make Mr. Holmes available for deposition at a place and time mutually convenient for the witnesses and counsel, but no later than 21 days from the date of this hearing, unless otherwise agreed to in writing between counsel.

(3) Plaintiff to bear the deposition costs associated with the deposition of Mr. Holmes.  Plaintiff is to pay this amount within 3 days of the Holmes deposition.  

(4) Plaintiff is to bear defendant’s costs and attorney fees directly associated with the deposition of Mr. Skorheim (i.e., the costs for the deposition and the attorney fees for travel to and attendance at the deposition).  Within 7 days, Plaintiff and defendant are to meet and confer regarding this amount.  Plaintiff is to pay this amount within 3 days of the Holmes deposition.      

Ex Parte Application to Continue Trial

Plaintiff’s ex parte application to continue trial is GRANTED. The parties should be prepared to select a new trial date at the hearing on this matter.  If the parties cannot agree on a trial date, the court will set a date selected by the defendant (so long as it is at least three weeks after the current trial date).

The moving party is ordered to give notice of this ruling.