Judge Deirdre Hill, Case 18STCV07856 2022-10-18 Tentative Ruling

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Moving Parties: Defendants and cross-defendants Unifactor Corporation (Deo 25) and Steve’s Plating Corporation (Doe 26)

Motion for Leave to Augment Defendants’ Supplemental Expert Witness Designation

On December 6, 2018, plaintiff Prabhakar Reddy filed a complaint against Twenty4Seven Hotels, Corporation for (1) negligence, (2) strict products liability defective manufacturing, (2) strict products liability design defect, and (4) strict products liability defect due to inadequate warning. Plaintiff alleges that on October 23, 2017, he was staying in room 634 at DoubleTree by Hilton LAX – El Segundo located at 1985 E. Grand Avenue, El Segundo. Complaint, ¶1. He moved a marble-top table that was placed next to his bed in order for him to be able to safely enter and exit the bed. When he moved the table, the marble-top detached from its base and began to fall towards plaintiff’s feet, causing him to fall backwards and hit his back on the frame of the bed. As a result, he sustained a L1 anterior compression fracture resulting in 50% loss in height. Id., ¶2.

On February 25, 2019, defendant filed a cross-complaint against Unifactor Corporation for equitable indemnity, contribution, and declaratory relief.

On February 27, 2019, plaintiff filed an amendment designating Unifactor Corporation as Doe 25.

On June 4, 2020, plaintiff filed amendments designating Creo Hospitality, LLC as Doe 1 and Evolution Hospitality, LLC as Doe 2.

On July 24, 2020, Creo Hospitality filed a cross-complaint against Unifactor and Evolution Hospitality.

On September 24, 2020, plaintiff filed an amendment designating Steve’s Plating Corporation as Doe 26.

On November 30, 2020, plaintiff filed an amendment designating FDR Construction, Inc. as Doe 3.

CCP §2034.280 states: “(a) Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject. . . .”

Under CCP §2034.610(a), on motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to 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. (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.

Under (b), a motion under (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. Under (c), the motion shall be accompanied by a meet and confer declaration.

Under CCP §2034.620, 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.

Under (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.

Under CCP §2034.710, “(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date. (b) A motion under subdivision (a) shall be made 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. (c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Under CCP §2034.720, “The court shall grant leave to submit tardy expert witness information 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 absence of a 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) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order 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.”

Under CCP §2034.620, defendants and cross-defendants Unifactor Corporation and Steve’s Plating Corporation request leave to augment their supplemental expert designation list by adding the name and address of an expert witness, Ricky Sarkisian.

The court notes that on October 4, 2022, the court denied defendants’ ex parte application for leave to augment defendants’ expert designation. The court granted alternative relief by allowing shortened time to hear the issue on a noticed motion. The court ordered that the moving papers were to be served and filed by October 5; any opposition by October 7; and any reply by October 10. Service was to be by personal service, fax, or email with follow up phone call. Although it appears that the motion was served on October 5 by email along with a follow up phone call, it was not filed until October 10.

The court will address the merits although untimely filed. Defendants explain that after serving their initial expert designation on June 7, 2022, defendants served a supplemental expert designation by personal service on June 29, 2022, two days after the allowed 20-day deadline to serve supplemental designation, designating Dr. Ricky Sarkisian as an additional expert. Defendants contend that through the “apparent mistake, inadvertence, or neglect of prior counsel, the designation was untimely and personally served only two days after the 20-day deadline.” Plaintiff did not depose Dr. Sarkisian. Defendants note that Dr. Sarkisian was originally designated as an expert on June 7, 2022 by defendant FDR Construction Inc.

In opposition, plaintiff argues that he has detrimentally relied upon defendants’ failure to properly designate a vocational rehabilitation expert. Plaintiff de-designated a separate economist, Timothy Lanning, on July 8, 2022 because plaintiff thought that two experts regarding loss of earnings would not be necessary because defendant only has one expert, David Weiner, concerning loss of earnings and there is an overlap on these issues. If the motion is granted, plaintiff argues, defendants will have two experts to testify on plaintiff’s loss of earnings—a vocational rehabilitationist and an economist, and plaintiff will have one expert, a vocational rehabilitationist. Plaintiff further argues that defendants have not shown mistake, inadvertence, or neglect because current counsel does not have personal knowledge of the prior circumstances which led to the non-filing of the motion to augment. Plaintiff also contends that the motion is untimely because the statutory deadline to file the motion to augment was July 17, 2022 (ten days prior to the July 27, 2022 trial date) and the motion was not filed promptly. Rather it was filed after plaintiff filed a motion in limine.

In reply, defendants reiterate their argument that they have met the requirements to augment under CCP §2034.620. They also contend that plaintiff will not be prejudiced as their expert, Enrique Vega, is a vocational economic analyst and an economist. Defendants assert that defendants’ current counsel did not “learn of issues regarding Dr. Sarkisian’s late designation until after counsel received” plaintiff’s motion in limine.

(a) The court has taken into account the extent to which plaintiff has relied on the list and supplemental list of defendants’ expert witnesses. Defendants assert that plaintiff designated eleven experts. As stated in the opposition, plaintiff de-designated its economist on July 8, 2022.

(b) The court has determined that plaintiff will be prejudiced in maintaining their action. Although as defendants contend, plaintiff was aware of Dr. Sarkisian as an expert, he was designated by another defendant who settled. Also, although the supplemental designation was not made timely and served two days after the deadline, defendants did not promptly move for relief. Further, as plaintiff contends, it de-designated its economist and that if the motion is granted, it will have one witness to testify as to loss of earnings, as opposed to two experts for defendants. Plaintiff asserts that he will have to incur a significant amount of additional legal costs, attorney’s fees, and time to “re-prepare” for trial a third time with a new witness and “a completely different approach and strategy.”

(c) The court has determined under (2) that defendants have shown that they failed to determine to call that expert witness by failing to timely serve a supplemental declaration as a result of mistake, inadvertence, surprise, or excusable neglect by former counsel, but that defendants did not seek leave to augment promptly after deciding to call the expert witness. Rather, defendants waited three months until after plaintiff filed a motion in limine.

*Superior Court of California* *County* *of Los Angeles* *Southwest District* *Torrance Dept. M*
PRABHAKAR REDDY,	Plaintiff,	Case No.:	18STCV07856
vs.		[Tentative] RULING
TWENTY4SEVEN HOTELS CORPORATION, et al.,	Defendants.