Judge: Douglas W. Stern, Case: 22STCV14472, Date: 2023-03-13 Tentative Ruling

Case Number: 22STCV14472    Hearing Date: March 13, 2023    Dept: 68

Motion in limine re Undisclosed Expert
Witnesses - C.C.P. § 2034

On February 1, 2023 Plaintiff filed Motion
In Limine number 2 requesting that the Court preclude the testimony of Defendant’s
undisclosed expert witnesses, pursuant to Code
of Civil Procedure § 2034.300. In Plaintiff’s initial motion Plaintiff
submitted a declaration that failed to disclose any of the essential facts that
would demonstrate that the statute was applicable.  There was no evidence that there had been a
demand for simultaneous exchange of expert witness information. See C.C.P. § 2034.210; § 2034.230.

Plaintiff filed a Supplemental Brief on
February 21, 2023. In this filing Plaintiff claims that on December 2, 2022, it
served by mail a Demand for Exchange of Expert Witness information. Plaintiff attached
a copy of that Demand to this filing. The Demand sought the exchange of
information on December 27, 2022, a date 25 days after the mail service of the
demand. The trial date at that time was February 14, 2023, a date 49 days after
the designated exchange date.

[Defendant contends that it never
received the Demand and thus it did not engage in the required exchange of
expert witness information. Defendant filed a 245 page opposition.  Virtually all of the filing was copies of
numerous other papers exchanged between the parties in the case showing both
service by mail and electronically. (Since only the proof of service was
relevant to that argument, the Court fails to understand why anything more than
the face page and proof of service was necessary.) Since the Court does not find
the argument about service of other documents to be a necessary basis on which
to make its ruling, no further discussion of the approximately 235 pages of
surplusage will be included in this ruling.]

DATES MATTER

Defendant contends that the Demand is
defective as it sought an exchange that was only 49 days prior to the trial
(not 50 days per statute), and not 20 days after the service of the Demand, but
25 days thereafter. See C.C.P. § 2034.230(b). Defendant ignores the application of C.C.P. § 1013 which mandates that there be 5
additional days added since service was by mail.

“Section
2034.230, subdivision (b) states the date on which an expert witness demand may
require the information to be exchanged: “The specified date of exchange shall
be 50 days before the initial trial date, or 20 days after service of the
demand, whichever is closer to the trial date...” unless the trial court has found
good cause to modify the exchange date. The Civil Discovery Act expressly
provides that the five-day extension allowed by section 1013 applies to all
discovery methods contemplated by the act (§ 2016.050); section 1013,
subdivision (a) provides that the time for performing any act is extended by
five days when the demand or notice is served by mail within the state, as
here.

Although we
are unaware of any case authority explaining the operation of these statutes
together, a leading treatise states: “[I]f an expert witness demand is
served by mail, the exchange date must be extended accordingly (i.e., 5 days
for mail within California, 10 days outside state, etc.). With that
extension, the exchange date may be closer to trial than 50 days, leaving less time
to complete expert discovery.” (Weil & Brown, Cal. Practice Guide: Civil
Procedure Before Trial (The Rutter Group 2013) ¶ 8:1649.3, p. 8J–7 (rev. # 1,
2011).)”  Staub v. Kiley (2014)
226 Cal.App.4th 1437, 1445–1446 [173 Cal.Rptr.3d 104, 110]. (Bold added.)

The Demand was in compliance with C.C.P. § 2034.230(b).

COMPLIANCE MATTERS

Defendant also contends that it was not
required it to make an exchange of expert witness information as the Plaintiff
failed to comply with C.C.P. § 2034.260(b).  Defendant is
correct.

“(a) All
parties who have appeared in the action shall exchange information
concerning expert witnesses in writing on or before the date of exchange
specified in the demand. * * *

(b) The
exchange of expert witness information shall include either of the following:

(1) A list
setting forth the name and address of a person whose expert opinion that party
expects to offer in evidence at the trial.

(2) A
statement that the party does not presently intend to offer the testimony of an
expert witness.”  Code Civ. Proc., §
2034.260

Plaintiff did not comply with this
obligation.

“A trial
court's discretion is always delimited by the statutes governing the particular
issue but when the exclusion of expert testimony rests on a matter of statutory
interpretation, we undertake a de novo review. (Id at p. 950, 88
Cal.Rptr.3d 707; Tesoro del Valle Master Homeowners Assn. v. Griffin (2011)
200 Cal.App.4th 619, 639 [133 Cal.Rptr.3d 167].)”  Staub v. Kiley (2014) 226 Cal.App.4th
1437, 1445 [173 Cal.Rptr.3d 104, 110].

“Plaintiffs
first contend defendants lacked standing to seek to exclude the testimony of
plaintiffs' experts because defendants themselves failed to “ma[k]e a complete
and timely compliance” with the exchange procedures of section 2034.260.
Plaintiffs are correct.”  Staub v.
Kiley (2014) 226 Cal.App.4th 1437, 1445 [173 Cal.Rptr.3d 104, 110].

“…plaintiffs
are correct that defendants lacked standing to bring a motion
under section 2034.300 to seek to preclude plaintiffs' expert witnesses from
testifying at trial. Only a party that has itself “made a complete and timely
compliance with Section 2034.260” may seek to exclude his opponent's experts
for the opponent's unreasonable failure to comply with expert discovery. (Ibid.;
cf. West Hills Hospital v. Superior Court (1979) 98 Cal.App.3d 656, 660
[159 Cal.Rptr. 645] [applying prior version of Civil Discovery Act, suggests a
party not in strict compliance with expert disclosure requirements does not
have standing to object to other party's expert disclosure failures].)”  Staub v. Kiley (2014) 226 Cal.App.4th
1437, 1446 [173 Cal.Rptr.3d 104, 111].

Motion DENIED as Plaintiff failed to
comply with C.C.P. § 2034.260(b).