Judge: Deirdre Hill, Case: 19TRCV01050, Date: 2023-01-25 Tentative Ruling

Case Number: 19TRCV01050    Hearing Date: January 25, 2023    Dept: M

Hearing Date:                         January 25, 2023

Moving Parties:                      Defendants Mark Gehley and Laura Gehley

Responding Party:                  Plaintiff Michael Dyberg

Motion to Submit Tardy Expert Witness Information

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is CONTINUED to __________ to allow defendants to serve and file a declaration in compliance with CCP §2034.260(c) by _________.

BACKGROUND

On November 22, 2019, Michael Dyberg filed a complaint against Laura Gehley and Mark Gehley for (1) defamation and (2) IIED.

On March 3, 2020, the court denied defendants’ anti-SLAPP motion.

On May 5, 2020, Laura Gehley filed a cross-complaint for (1) sexual battery, (2) battery and assault, (3) IIED, and (4) NIED relating to the alleged rape.

On July 24, 2020, the court overruled defendants’ demurrer to the complaint.

On March 25, 2022, the court granted defendants’ Pitchess motion.

On April 25, 2022, the court denied defendants’ motion for summary judgment or, in the alternative, summary adjudication.

On May 24, 2022, defendants filed substitutions of attorney.  They are representing themselves.

On August 26, 2022, the court denied without prejudice defendants’ motion to submit tardy expert witness information because they did not comply with CCP §2034.720(c)(3) by serving a copy of the proposed expert witness information as is required and was not going to be able to make the expert available immediately for a deposition.

LEGAL AUTHORITY

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.”

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.

(c) The court has determined that the moving party did all of the following: 

(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 §2034.260, “(c) If a witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney.  This declaration shall be under penalty of perjury and shall contain all of the following:

(1) A brief narrative statement of the qualifications of each expert.

(2) A brief narrative statement of the general substance of the testimony that the expert is expected to give.

(3) A representation that the expert has agreed to testify at the trial.

(4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial.

(5) A statement of the expert's hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.”

DISCUSSION

            Pursuant to CCP §§2034.710 and 2034.720, defendants (self-represented) request leave to submit tardy expert witness information.

            Defendants contend that they sent plaintiff’s counsel a meet and confer letter on November 6, 2022.  Defendants also assert that Dr. G. Freedman-Harvey, Ph.D. was hired in 2020, referencing the curriculum vitae and expert witness schedule and that he is available for deposition.

            In opposition, plaintiff argues that the motion is untimely.  The court notes that the hearing date of January 10, 2023 was continued to January 25, 2023 and thus plaintiff was not prejudiced in opposing the motion.  Plaintiff also argues that defendants have failed to provide a compliant expert designation by failing to explain why “their lawyers did not designate experts” in connection with the earlier trial dates and there is no expert witness declaration in compliance with CCP §2034.260(c).  Alternatively, plaintiff contends that the court should condition granting the motion relieving plaintiff of having to pay the experts’ fees to be deposed.

            In further filing, defendants assert that they emailed plaintiff’s counsel on December 30, 2022 with expert witness report.

            In reply, defendants explain further that they had incorrectly assumed that “this was already performed and unfortunately, they are unable to speak for their previous counsel.”  Further “[d]uring review of everything Defendants could find” no explanation.  Defendants also assert that they were not aware of the requirement under CCP §2034.260 for an expert witness declaration but believe that they have complied by refiling the motion with the CV and pay schedule and providing the expert witness report that was sufficient.  Defendants also assert that they retained the expert witness for $4,000.

The court rules as follows:  The court finds as to the following conditions:  

(a) The court has taken into account the extent to which plaintiff has relied on the “absence of a list of expert witnesses.”  As stated above, plaintiff asserts that he does not intend to offer expert testimony at trial.

(b) The court has determined that plaintiff will not be prejudiced in maintaining his action.  

(c)(1) The court has determined that defendants failed to submit the expert designation list as a result of mistake, inadvertence, surprise, or excusable neglect.  Defendants had previously asserted that they became pro se litigants on May 25, 2022 and that they did not receive plaintiff’s request until June 15, 2022 when they obtained their attorney’s client files.

(c)(2) The court also has determined that defendants sought leave to submit the information promptly after learning of “the mistake, inadvertence, surprise, or excusable neglect” by filing the motion in July 2022 and again in November 2022.

(c)(3) As to whether defendants “promptly thereafter served a copy of the proposed expert witness information” as described in CCP §2034.260 on plaintiff, defendants did not comply because they did not provide a declaration as required.  A copy of the CV, rate schedule, and purported expert’s report are insufficient. 

Accordingly, the hearing is CONTINUED to allow defendants to serve and file a declaration in compliance with CCP §2034.260(c) in support of their motion.

Plaintiff is ordered to give notice of ruling.