Judge Donald F. Gaffney, Case Bailon v. University of California Irvine Medical Center 2022-09-07 Tentative Ruling

Judge: Donald F. Gaffney, Case: Bailon v. University of California Irvine Medical Center, Date: 2022-09-07 Tentative Ruling

TENTATIVE RULING:

Plaintiff Daniella Bailon’s Motion to Submit Tardy Expert Information is GRANTED. The deposition of Dr. Aflatoon shall be scheduled immediately.

Requirements to Submit Tardy Expert Witness List

Code Civ. Proc., § 2034.71 provides:

(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.

Plaintiff has adequately met and conferred. With the trial date set on 10/10/22, there is sufficient time to take the deposition of non-retained expert, Dr. Kamran Aflatoon.

Code Civ. Proc., § 2034.720 provides that “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.

Plaintiff has complied with these requirements. By listing Dr. Aflatoon as a non-retained expert, Defendants anticipated that he would testify at trial. Defendants were aware that he was a treating doctor and that he had prepared a declaration to oppose the summary judgment motion.

Plaintiff executed the stipulation assuming Defendants acted in good faith to retain Dr. Aflatoon on its expert witness list. Plaintiff acted with excusable neglect in assuming that Defendants would not de-designate Dr. Aflatoon as a non-retained expert after the stipulation was signed.

After the motion to quash was filed, Plaintiff engaged in a meet and confer effort to resolve the issue. Failing to gain Defendants’ cooperation, Plaintiff promptly moved to submit the tardy expert list.

The motion is GRANTED. The deposition of Dr. Aflatoon shall be scheduled to occur immediately.

Moving party to give notice.