Judge: Deirdre Hill, Case: BC710314, Date: 2022-08-11 Tentative Ruling

Case Number: BC710314    Hearing Date: August 11, 2022    Dept: M

Hearing Date:                          Thursday, August 11, 2022 

Moving Parties:                      Plaintiff Cassandra Lee Webster Avance 

Responding Party:                  Defendant Jennifer C. Chu, M.D. 

Motion to Submit Any Tardy Expert Designation 

The court considered the moving and opposition papers. 

RULING 

The motion is GRANTED.  Counsel are ordered to meet and confer as to available dates and times to depose plaintiff’s experts.  Plaintiff is ordered to make the experts available immediately for deposition and to serve Defendant with designation of expert witness.

BACKGROUND 

On June 15, 2018, plaintiff Cassandra Lee Webster filed a complaint against Jennifer C. Chu, M.D. and Providence Little Company of Mary Medical Center Torrance for (1) medical negligence, (2) lack of informed consent, (3) ostensible agency/vicarious liability, (4) medical battery, (5) negligent misrepresentation, (6) corporate hospital liability, and (7) negligent infliction of emotional distress. 

On January 18, 2019, the court ruled as follows on defendant Providence’s demurrer:  sustained with 60 days leave to amend as to the 2^nd, 4^th, and 5^th causes of action, sustained without leave to amend as to the 7^th cause of action, and overruled as to the 3^rd and 6^th causes of action. 

On March 15, 2019, at the hearing on defendant Dr. Chu’s demurrer, the court sustained with leave to amend as to the 4^th and 5^th causes of action and sustained without leave to amend as to the 7^th cause of action. 

On March 26, 2019, plaintiff filed a First Amended Complaint for (1) medical negligence, (2) lack of informed consent, (3) ostensible agency/vicarious liability, (4) medical battery, (5) negligent misrepresentation, and (6) corporate hospital liability. 

On October 22, 2020, the court denied Jennifer Chu, M.D.’s motion for summary judgment and summary adjudication as to the 1^st cause of action and granted summary adjudication as to the 2^nd cause of action. 

On May 12, 2022, plaintiff filed an initial Motion for Leave to Submit Tardy Expert Designation.

On May 25, 2022, this court denied plaintiff’s motion.

On June 1, 2022, plaintiff filed a Motion for Reconsideration, which was granted by this court.

On July 21, 2022, plaintiff filed this instant motion for Leave to Submit Tardy Expert Designation.

On July 29, 2022, defendant filed its opposition.

On August 11, 2022, this matter is called to be heard before the court.

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.” 

DISCUSSION 

Plaintiff Cassandra Lee Webster Avance (“plaintiff’)  requests leave to submit any expert designation “characterized as tardy.” Plaintiff’s motion is made on the grounds of plaintiff counsel’s mistake, inadvertence, surprise, and excusable neglect.

            In opposition to plaintiff’s motion, defendant argues that plaintiff has failed to comply with CCP §2034.720 and that granting this motion would be prejudicial to defendant. (Opposition, p. 1). Defendant argues that plaintiff has not properly served any expert witness designation defendant. (Id).

            Here, although defendant argues that plaintiff has not properly served defendant her designation of expert witness, by the September 7, 2021 deadline, the original date of this submission was based on the February 9, 2022 trial date. (Id. at p. 2: Lines 17-18). Defendant highlights that “expert designation, motion and expert discovery cut off deadlines have already passed, and will not be continued with the new trial date,” however, this court granted plaintiff’s Motion for Reconsideration and permitted plaintiff to submit a tardy designation of experts. (See Minute Order, June 1, 2022).  In the court’s order, the court reconsidered its previous ruling to deny plaintiff’s motion to to submit tardy expert witness designation and allowed for plaintiff to submit a renewed motion in compliance with CCP 2034.260(c). Plaintiff submitted its renewed motion on July 21, 2022, therefore defendant’s argument is not consistent with this court’s ruling on June 1, 2022.

            First, Plaintiff has complied with  CCP §2034.720 (c)(1), by demonstrating that the failure to submit the information to defendant was due to counsel mistake. Specifically, plaintiff contends that on October 19, 2020, plaintiff filed her expert witness designation with the court, designating Dr. David Mayer, M.D. and Dr. Ramin Mirshashemi, M.D. as her experts.  Plaintiff asserts that the designation was filed electronically and acknowledges that the proof of service was addressed to Providence, but not to Dr. Chu.  On September 3, 2021, a supplemental expert witness list was filed and served on Dr. Chu.  Plaintiff explains that at the final status conference on February 23, 2022, Dr. Chu had a pending motion in limine to exclude plaintiff’s experts due to lack of disclosure.  Plaintiff contends that plaintiff’s counsel provided a copy of the expert disclosure to Dr. Chu’s counsel and advised the court of the prior disclosures of experts.  Plaintiff asserts that due to mistake, surprise, and excusable neglect of plaintiff’s counsel, plaintiff did not know that Dr. Chu did not receive the expert disclosures “in light of the electronic filing, which generally sent notice to all parties.”  (Decl. of Zulu Ali, ¶9).

            Second, plaintiff sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect by providing a copy of the expert to Dr. Chu after learning on February 23, 2022 at the final status conference that Dr. Chu had not received the expert designation. (Id). During the final status conference, interim motion was granted as to treating physician Dr. Hashemi, but denied without prejudice as to Dr. Mayer subject to complaint §CCP 2034, however since then, a compliant declaration has been completed. (Id). The court finds plaintiff seeking leave through its motion filed on May 12 and again on July 21 as promptly submitting the information to defendant in compliance of CCP §2034.720(c)(2).

            Third, because plaintiff has complied with §2034.720(c)(3) by serving a copy of the proposed expert witness information as described in CCP 2034.260. On October 19, 2020, plaintiff served defendant a disclosure of expert witness Dr. David A. Mayer on the opposing party. (Mot. to Submit Any Tardy Expert Designation, Exhibit A, p. 1). On June 22, 2022, Plaintiff also submitted a declaration of her intention to retain Dr. Mayer to testify and her intention to finalize retention for trial on or before the final status conference. (Id. at Exhibit D, p. 1). Considering that the final status conference is scheduled on the same date and time  of the hearing of this motion, this Court GRANTS the instant motion, contingent on plaintiff’s serving defendant with a finalized documentation of Dr. Mayer’s retention as an expert witness for trial.

Based on the forgoing, the motion is thus GRANTED. 

The order is conditioned on plaintiff making the experts available immediately for a deposition and serving defendant of Dr. Mayer’s retention in compliance with §2034.720(c)(3)

Plaintiff is ordered to give notice of ruling.