Judge: Frank M. Tavelman, Case: 20STCV21468, Date: 2022-09-28 Tentative Ruling

Case Number: 20STCV21468    Hearing Date: September 28, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

EX PARTE APPLICATION FOR ORDER TO STRIKE AND EXCLUDE PLAINTIFF’S IMPROPERLY DESIGNATED NON-RETAINED EXPERTS.

PLAINTIFF’S EX PARTE MOTION TO STRIKE DEFENDANT’S SUPPLEMENTAL DESIGNATED EXPERT WITNESSES AND FOR SANCTIONS

ORDER TO STRIKE AND EXCLUDE PLAINTIFF’S NON-RETAINED EXPERTS

MP:     Erick Contreras and Fleet Leasing, Inc. (“Defendants”)

RP:      Darius White (“Plaintiff”)

ORDER TO STRIKE AND EXCLUDE DEFENDANT’S SUPPLEMENTAL DESIGNATED EXPERT WITNESSES AND FOR SANCTION

MP:     Darius White (“Plaintiff”)

RP:      Erick Contreras and Fleet Leasing, Inc. (“Defendants”)

CASE ALLEGATIONS AND HISTORY:

Darius White ("Plaintiff") filed suit against Erick Contreras ("Contreras") and Fleet Car Lease, Inc. ("Fleet", and together, "Defendants") regarding a motor vehicle collision that resulted in Plaintiff's injury. 

On May 3, 2022, Judge W. Stewart conducted a case management conference (“CMC”).   A prior attorney, Todd Krauss, Esq. of Beverly Law appeared on plaintiff’s behalf.  As represented in the CMC Statement, both sides would agree to mediation, and Judge Stewart put the case over for a status conference.  Subsequently, Plaintiff’s counsel proposed a mediator, R.A. Carington, to whom Defendants agreed.  (McCarthy Decl. dated September 5, 2022 ¶8 and Exhibit 1 thereto).  A CMC Statement indicating that mediation would be acceptable to plaintiff was submitted by Michael Shemtoub, Esq.  The parties understood that some initial discovery would be needed before the mediation could take place.  (Id at ¶ 7).

On August 12, 2022, Defendants contacted Mr. Krauss regarding delinquent discovery, and an attempt to schedule mediation dates.  Four days later, Michael Shemtoub, Esq., the Chief Executive Officer and Managing Attorney for Beverly Law Firm (title is based on Michael Shemtoub decl. dated. September 9, 2022) contacted Defendants’ counsel, Mr. McCarthy advising him that the former lawyer with whom Mr. McCarthy was dealing was not longer employed at Beverly Law.  Mr. Shemtoub further advised that, despite having previously represented in a CMC Statement that the Plaintiff would be interested in mediation, and despite her former colleague Mr. Krauss having represented to Judge Stewart that mediation was mutually agreed upon, and despite Defendants agreeing to the mediator proposed by Plaintiff, Plaintiff was not interested in mediation and declined to continue the trial date.  (McCarthy Decl. dated September 5, 2022, ¶12 and Exhibit 4 thereto).  Mr. Shemtoub provided no further information in his communication as to why the Plaintiff retracted their agreement to mediate.

After a prior ex parte and hearing, the Court made discovery orders for expert depositions with express dates ordered.  The Court declined to strike the retained experts given the new discovery schedule.   Furthermore, the trial date was moved with the understanding that such movement does not extend any discovery deadlines except as noted previously.   The Court also advised that no revisions to previous experts would be permitted without leave of the Court.  The Court ordered a number of meet and confers, but they were met with limited success.

Defense requests the Court to take judicial notice a Stipulation for Prohibition of Practice In Re. Randy Rosen filed on July 15, 2020 in the Orange County Superior Court.  Pursuant to Evidence Code §§4529(d) and 453, the Court takes judicial notice of that document.

REQUESTED RELIEF REQUESTED BY DEFENDANT - ORDER TO STRIKE AND EXCLUDE PLAINTIFF’S NON-RETAINED EXPERTS

Defendant unambiguously has requested this Court to rule on a potential discovery violation concerning non-retained experts pursuant to CCP §2034.300 by failing to comply with CCP §2034.260(b)(1).

The Court notes that Plaintiff objects to this matter be handled by Ex Parte relief.

DISCUSSION

Ex Parte Relief

The Court finds that at the time of the filing, the trial date of October 4, 2022, had not been moved so a delay in addressing the matter would have been problematic.   After the Court moved the trial date to March 2023, the matter was put over to September 28 for the Court’s full consideration.   Although the trial date has been moved, the designation of new experts has not been.

The Court believes that the urgency was created as a result of the Plaintiff’s sudden and unexplained withdrawal for an agreement to mediate this case, as well as an initial refusal to extend the trial date, which ironically ultimately was agreed to with limitation.   As such the Court will rule on the ex parte application.

Striking Non-Retained Experts

Objection to Declaration of Michael Shemtoub, Esq.

Defendants object to Mr. Shemtoub’s declaration for two reasons.   First, it fails to comply with the Rules of Court, specifically failure to paginate and include paragraph numbering.   The Court sustains the objection and admonishes Plaintiff to use page numbers.  Furthermore, the declaration includes argument rather than facts and as such, the Court strikes the declaration.   Shemtoub’s declaration is so intertwined with argument and some fact, that it would be unreasonably time consuming to strike argument line by line.   The Court did consider some of the arguments made in the moving papers, as much of that was supported by exhibits in Defendants’ motions.

Analysis

CCP § 2034.260 states in part:

(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. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange.

(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.

In response to the discovery request, Plaintiff included a list of both retained and non-retained experts (Defense disputes that whether experts were actually retained).  As to the non-retained experts, Plaintiffs provided the following response for individuals from the following 16 different facilities:  (1) Young Physical Therapy, (2) Radnet (MRI Imaging), (3) Beverly Radiology Medial Group, (4) Startpoint Surgery Center – Studio City, (5)Neurospine Institute, (6) Rosen Anesthesia Group, (7) Wellness Wave Surgery Center, (8) Advanced Imaging, (9) LA Orthopedics, (10) Saddleback portable Xray, (11) Radiology Consultants of San Dimas, (12) Elite Advance Imaging, (13) Hawthorne Surgery Center, (14) Sky Anesthesia, Inc., (15) BKP Medical and Orthopedic Group, (16) Atlas Health Clinic.  Some of the locations a physical business address is provided, but others only a P.O. Box address.

“All medical professionals that treated or interacted with Plaintiff.”

Defendants object arguing that Plaintiffs have failed to comply with CCP §2034.260(b)(1).  Specifically that Plaintiffs failed to provide the names of non-retained experts at these locations, and in those instances in which a P.O. Box was provided that the law requires a physical address.

Plaintiff counters in their Opposition to Defendants’ Ex Parte Application for Order to Strike Improperly Designated Non-Retained Experts arguing that providing a P.O Box address is sufficient, and is the only address Plaintiff has.  Plaintiff argue in their opposition that the names of the experts should have been known to the Defendants based on “an exhaustive amount of discovery” disclosed.  (Plaintiff Opp. 5:15-19).  To support this position, Plaintiff attaches voluminous unpaginated discovery as an Exhibit A.   The Court has reviewed the documents, and concludes that the Plaintiff’s position is simply unreasonable.

The listing of non-retained experts in the manner done by Plaintiff violates CCP §2034.260(b)(1) on its face.  First, the Plaintiff would desire the Defendant to determine who is a “medical professional,” and second which of these persons Plaintiff will decide to call at trial.  Is a medical professional Plaintiff intends to call a, nursing assistant, licensed vocational nurse, registered nurse, xray technician, admissions nurse, medical doctor, doctor of osteopathic medicine, physical therapist, physical therapist assistant, physician assistant, and the list of potential “medical professional[s]” can go on.  Defense should be forced into a position such that they must speculate which witnesses a Plaintiff will find important to call at trial based simply on a massive amount of discovery provided to the opponent.  It is the duty under the Civil Discovery Act for the Plaintiff to make appropriate disclosures, something Plaintiff has not done.

CCP §2034.300 states that when a party unreasonably fails to list a witness as an expert under CCP §2034.260, the court shall exclude from evidence the expert opinion of that witness.  In this instance, Plaintiff has unreasonably failed to list Plaintiff’s non-retained experts as mandated by the Civil Discovery Act. 

Defendants cite Kalaba v. Gray (2002) 95 Cal. App. 4^th 1416.  In Kalaba, the appellate court held that the trial court did not abuse its discretion in precluding the testimony of plaintiff's treating physicians as expert witnesses. Treating physicians are not retained experts, and no expert declaration is required when a party intends to call a treating physician for the purpose of eliciting expert testimony; it is sufficient if a treating physician is identified by name and address in the proponent's designation of expert witnesses. However, where the treating physicians are not listed or identified by name, there has been no compliance with the letter or the spirit of Code Civ. Proc., § 2034.  The Court agrees that Kalaba applies to this case.

Conclusion

Defendants’ motion to strike non-retained experts is granted.  The court finds that Plaintiff’s failure to comply with CCP §234 was unreasonable, and thus the sanction discussed in CCP §2034.300 and Kalaba should be applied.  

Responding Party’s Request for Sanctions

Plaintiffs seek sanctions in the amount of $1,400 arguing that the motion lacked merit, was “haphazard and obstructionist.”  Plaintiff further argues that Defendants abuse and misuse of the discovery process as set for the in CCP §§2025.450(g), 2023.010(b) and 2033.010(d) justifies sanctions.  As discussed more fully above, the Court disagrees.   Defendant’s motion was meritorious, well documented, and seeks to timely and efficiently move this case to trial.

The Plaintiff’s request for sanctions is denied.

RELIEF REQUESTED BY PLAINTIFF - ORDER TO STRIKE AND EXCLUDE DEFENDANT’S SUPPLEMENTAL DESIGNATED EXPERT WITNESSES AND FOR SANCTION

Plaintiff requests the Court to strike and exclude supplemental designated expert witnesses on the following grounds:

A. Defendants’ “Supplemental Designation of Expert Witnesses” was untimely served on September 6, 2022, and thus the purported “expert witnesses” designated therein should be stricken pursuant to CCP § 2034.280(a).

B. Defendants failed to make their purported expert witnesses designated through the “Supplemental Designation of Expert Witnesses” immediately available, as dictated by CCP § 2034.280(c), by nefariously refusing to provide dates for deposition, thus warranting their exclusion pursuant to CCP § 2034.300(d).

C. Defendants “Supplemental Designation of Expert Witnesses” failed to comply with CCP § 2034.280(b), and did not accompany such purported supplemental designation with an expert witness declaration under subdivision (c) of CCP § 2034.260 and reports thereof, and thus such supplemental designation, and the expert witnesses purportedly designated thereof, must be stricken.

D. The Court must award discovery sanctions against Defendants and their attorneys, jointly and severally, in the amount of $1,400.00 pursuant to CCP §§ 2025.450(g)(1) and 2023.010(b) and 2023.010(d) due to their untimely service of their purported “Supplemental Designation of Expert Witnesses”, possibility of including newly-listed expert witnesses in their initial disclosure, failed compliance with statutes, and their nefarious refusal to provide dates for expert witnesses depositions.

DISCUSSION

Pursuant to CCP §2034.280(a), when an initial exchange of expert witnesses takes place, within 20 days after the initial designation to name experts, a party may supplement the witness list for those not previously retained. 

As noted in Defendant’s opposition, the last day to provide the supplemental witness list was September 6, 2022, and the 20^th day fell on a Sunday and then a holiday.  (CCP §§10, 135, Gov Code §6700(a)(9)).    Plaintiff acknowledges that the disclosure was served on September 6, 2022.   As such, the Court finds this argument lacks merit.

As to the issue of the Defense “nefariously” refusing to provide deposition dates.   The Court previously held extensive hearing on the issue concerning deposition dates between the parties, and the Court has subsequently ordered deposition dates.   In considering those argument, the Court does not believe the Defense acted “nefariously” or otherwise in a manner justifying the striking of these experts.  Furthermore, after the Court’s attempt to get the parties to meaningfully meet and confer failed to achieve the desired result, the Court has become actively involved in assuring all experts are timely made available for depositions, at one point ordering the parties back to court (remotely was permitted) daily until dates could be agreed upon, and ordered.

As to the third argument that the disclosure failed to include an expert witness declaration, this too appears to be without merit.  CCP § 2034.260(c) does not mandate that the expert witness sign the declaration, it states as follows:

(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.

In Plaintiff’s own moving papers, they include Exhibit A, which include the declaration of Patrick McCarthy, Esq. specifically addressing the requirements set for the in CCP §2034.260(c).

The final argument cites to Defendants’ failure to disclose witnesses that would typically be called in this type of case.   Plaintiff cites Du-All Safety, LLC v. Superior Court (2019) 34 Cal. App. 5^th 485.  The Court initially finds this argument to be persuasive; however, as correctly exposed in Defendants’ opposition, Plaintiff’s representation as to that case was less than candid and complete.   While the Plaintiff cited the trial court’s decision, Plaintiff failed to disclose that the Court of Appeal actually found that the trial court abused its discretion by doing exactly what Plaintiff proposes this Court do.  At times zealous advocates overlook important matters, and as such the Court feels obligated to remind Plaintiff’s counsel of the Rules of Professional Conduct, Rule 3.3 mandating Candor toward the Tribunal (Court) (A lawyer shall not misquote to a tribunal the language of a court decision).

This Court is satisfied with the representations by Defense Counsel as contained in his declaration concerning the timing and purpose of retaining the supplemental experts. 

Sanctions

The issue of sanctions for this motion is moot.   The Court does not find Defendant violated the discovery rules.

RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records:

ORDER

Defendants Ex Parte Motion to Strike and Plaintiffs Ex Parte Motion to Strike came on regularly for hearing on September 28, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows:

THE DEFENDANTS’ REQUEST TO STRIKE NON-RETAINED EXPERTS IS GRANTED AS TO UNNAMED NON-RETAINED EXPERTS.

THE PLAINTIFF’S REQUEST TO STRIKE AND EXCLUDE DEFENDANTS’ SUPPLEMENTAL DESIGNATED EXPERTS IS DENIED.

THE PLAINTIFF’S REQUEST FOR SANCTIONS IS DENIED.

IT IS SO ORDERED.

DATE:  September 28, 2022                           _______________________________

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles