Judge Deirdre Hill, Case 20TRCP00101 2022-08-30 Tentative Ruling

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On June 12, 2020, plaintiffs Davon Dean, Hugo Aceves, and Juan Abel Gomez filed a complaint against Lennox School District, Estate of Kent Taylor, deceased, and Janet Taylor, successor in interest of Kent Taylor for (1) sexual harassment quid pro quo, (2) hostile work environment harassment, (3) failure to prevent harassment, (4) intentional infliction of emotional distress, and (5) negligent infliction of emotional distress. Plaintiffs allege that they are three males and employees of defendant who were sexually harassed by the former superintendent of the Lennox School District.

On February 23, 2021, plaintiffs filed a request for dismissal as to estate of Kent Taylor and Janet Taylor.

On April 22, 2022, the court granted defendant’s motion for leave to amend answer. The court also granted plaintiffs’ motion to compel further deposition responses and document production as to Janet Taylor.

On June 2, 2022, the court denied plaintiffs’ motion to strike defendant’s supplemental expert designation.

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, defendant Lennox School District requests leave to amend its expert witness designation to add Dr. Mary Willis (human resources expert) as a primary witness (she was previously designated as a rebuttal witness) and the scope of her anticipated testimony to include testimony regarding prohibited discrimination, harassment, and retaliation; the District’s regulations and practices regarding sexual harassment, reporting sexual harassment, and sexual harassment training; and the District’s policies and practices prohibiting retaliation for reporting discrimination or harassment.

Also, on a “non-statutory basis,” defendant seeks to augment its expert designation to add “non-retained experts” regarding plaintiffs’ claims for loss of earnings and overtime pay: 1. Dr. Cynthia Foley (former Chief Personnel Officer), 2. Dr. Hiacynth Martinez (Chief Personnel Officer), 3. Kevin Franklin (former Chief Business Officer), 4. Nicasio “Nick” Salerno (former interim Superintendent), 5. Dr. Scott Price (former Superintendent), 5. Pat Smith (former CFO of LA County of Education), and 7. Jeff Young (Asst. Director of ABS, Los Angeles County of Education). The court notes that CCP §§2034.710 and 2034.720 are applicable to defendant’s request.

Defendant explains that on August 1, 2022, it served a new demand for exchange of expert witness information based upon the new trial date. Defendant contends that plaintiffs did not object to the demand and although the District believes that the parties should be able to designate any experts on August 30, 2022, the date of the exchange, it seeks leave “in an abundance of caution.”

In opposition, plaintiffs argue that the motion should be denied because defendant has failed to demonstrate diligence and to seek court relief much earlier. Plaintiffs also contend that there is not sufficient time to depose all the designated experts in compliance with the discovery cut-off and “would place far too great a burden on plaintiffs, and unfairly so.” Further, plaintiffs assert that to have their expert “pivot so substantially” to respond to an expanded scope of testimony and to the seven non-retained experts “is asking way too much.” Plaintiffs request sanctions.

The court finds as to Dr. Willis, under CCP §2034.620, that the following conditions are satisfied:

(a) The court has taken into account the extent to which plaintiffs have relied on the list and supplemental list of defendant’s expert witnesses. No expert witness depositions have been taken.

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

(c) The court has determined under (1), defendant 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. Defendant contends that because the trial date was moved, it is still developing its trial strategy. Defendant asserts that the trial date was continued because the parties were not ready for trial and that it had not at that time reached the point at which it could serve an expert designation which fully covered all key topics of expert testimony that would be needed for a proper defense at trial.

As to the seven “non-retained” experts, as stated above the applicable statutes are CCP §§2034.710 and 2034.720. Although not cited, defendant did address the factors.

Under CCP §2034.710, the motion was made a sufficient time in advance of the time limit for the completion of discovery, commencing with section 2024.010 to permit the deposition of defendant’s non-retained experts to be taken within that time limit.

Under CCP §2034.7120(a), the court has taken into account the extent to which plaintiffs have relied on the absence of a list of the additional non-retained expert witnesses. As to (b), the court has determined that plaintiffs will not be prejudiced in maintaining plaintiffs’ action. As to (c), the court has determined that defendant 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. As to (d), counsel are to meet and confer as to available deposition dates.

Thus, the motion is GRANTED as to amending defendant’s expert witness designation to add Dr. Mary Willis as a primary retained expert. The motion is GRANTED as to adding the non-retained expert witnesses. Counsel are to meet and confer as to mutually agreeable dates and times for depositions.

*Superior Court of California* *County* *of Los Angeles* *Southwest District* *Torrance Dept. M*
DAVON DEAN, et al.,	Plaintiffs,	Case No.:	20TRCP00101
vs.		[Tentative] RULING
LENNOX SCHOOL DISTRICT, et al.,	Defendants.