Judge: Frank M. Tavelman, Case: 20STCV21468, Date: 2022-10-25 Tentative Ruling

Case Number: 20STCV21468    Hearing Date: October 25, 2022    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTON TO AUGMENT RETAINED EXPERT DISCOVERY

MP:     Darius White, Plaintiff

RP:      Erick Contreras; Fleet Car Lease, Inc. Defendants     

SUMMARY OF RULING:

The Motion to Augment Expert Witnesses is denied.   Plaintiff failed to comply with all the statutory requirements to grant the motion, to wit, the failure to call that expert was due to mistake, inadvertence, surprise, or excusable neglect. CCP §2034.620(c).

HISTORY:

On July 25, 2022, Defendants’ counsel served Plaintiff with a Demand for Exchange of Expert Witness Information pursuant to CCP § 2034.210.  Plaintiff replied with retained and non-retained experts.  After a hearing, pursuant to a Defense motion, the Court struck the Plaintiff’s unnamed non-retained experts for violation of CCP §2034.300.   Furthermore, Defense sought to strike Plaintiff’s retained experts for two reasons: (1) Plaintiff failed to include a properly executed declaration pursuant to CCP §2015.5, and (2) upon further investigation by the Defense, some of the retained experts were not actually retained.   Defense spent numerous hours researching and preparing to depose the retained experts; however, despite noticing depositions and sending required funds for the deposition, the defense was unable to depose them.  Defense later learned that two key experts had not been retained.  Plaintiff argued that the inability to depose the experts was a result of the Defense setting unilateral deposition dates.  But for Defendant’s inability to depose Plaintiff’s “retained” experts, the case would have been tried on October 4, 2022; this is particularly true as Plaintiff previously refused to agree to a defense continuance.

The Defense is correct that Plaintiff failed to provide a proper declaration as mandated by CCP §2034.300; however, the Court determined that to be a technical violation that could be corrected.  Over Defense objection, the Court permitted Plaintiff to resubmit their list of experts with a proper declaration.  The contents of that declaration must remain unchanged with the exception of: (1) including the correct penalty of perjury language and (2) excluding the unnamed non-retained experts the Court struck.  The Court scheduled an additional hearing for October 12, 2022.   The corrected declaration was filed October 11, 2022, and Plaintiff also filed a Motion to Augment Expert Witnesses.   Defense objected to any augmentation.

At a September 12, 2022, hearing the Court vacated the previously set October 4, 2022 trial because of scheduling issues related to expert depositions, the trial was continued to March 13, 2023.   Despite the continuance, the Court expressly declined to extend expert discovery deadlines because of a dispute regarding whether Plaintiff improperly designated retained experts.   The Court did permit, upon the statutory showing needed to augment expert witnesses, either party to designate new experts.  This would require leave of the Court. 

At the September 13, 2022 hearing, Plaintiff withdrew retained experts Dr. Ramin Rabbani and Carol Hyland from the expert list.  Defense counsel produced declarations asserting that neither of these individuals were retained as initially alleged by Plaintiff.

Plaintiff filed a motion to augment the prior expert discovery replacing Dr. Ramin Rabbani with Dr. Allen Nourian pursuant to CCP §§ 2034.610 and 2034.710.  Plaintiff asserts that at the time of the initial designation, Plaintiff had no reason to know that Dr. Rabbani went on medical leave and closed his office.  (Plaintiff’s Moton to Augment Pg 2:4-7)

LEGAL STANDARD:

CCP § 2034.260 requires all parties to exchange information concerning expert witnesses in writing.  This information shall include, inter alia, the name and address of a person whose expert opinion that party expects to offer in evidence at trial. (CCP §2034.260(b)(1)). The accompanying declaration shall also provide, “A representation that the expert has agreed to testify at the trial.”  CCP §2034.260(c)(3).

CCP § 2034.300 governs the initial exchange of Expert Witness Information.

Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

A trial court has the discretion to exclude untimely disclosures of expert witnesses under the court’s inherent authority.  (Cottini v. Enloe Medical Center (2014) 226 Cal. App. 4^th 401.  CCP § 2034.300 provides that, with certain exceptions, “on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following: (a) List that witness as an expert under Section 2034.260. (b) Submit an expert witness declaration. (c) Produce reports and writings of expert witnesses under Section 2034.270. (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”

DISCUSSION:

In connection with an original exchange of expert designations pursuant to CCP §2034.260, Plaintiff’s counsel provided a purported declaration stating: “This Declaration is made pursuant to Code of Civil Procedure, Section 2034.260, with respect to those designated expert witnesses retained by plaintiff the purpose of expressing expert opinions at trial.” Shemtoub Decl. Aug. 15, 2022, p. 1:6-8).  Specifically, as to Dr. Rabbani it is asserted that he was retained; which was states under the summary of his proposed expert testimony.   Mr. Shemtoub writes, “Dr. Rabbani is a board certified orthopedic surgeon. He has been retained to comment on the nature and extent of plaintiff’s injuries sustained in this matter; causation;… (emphasis added).”  Shemtoub Decl. Aug. 15, 2022 p. 4:14-15).  As to Carol Hyland, counsel writes, “Ms. Hyland has agreed to testify at the trial.  She will be sufficiently familiar with the pending action to submit meaningful oral deposition … (emphasis added).”  (Id at p.1:24-25).   However, this may not have been accurate.

Plaintiff’s counsel challenged the sufficiency of Plaintiff’s compliance with CCP §2034.260 because Mr. Shemtoub failed to include the necessary language for his Declaration to satisfy the requirements of the Civil Code.  Specifically, he did not include the “penalty of perjury” language needed.   Over the objection of the Defendant, the Court permitted Mr. Shemtoub to file a nunc pro tunc declaration correcting the technical omission, but required the corrected declaration to remain the same as the initial 2034.260 declaration, with the exception of excluding unnamed non-retained experts the Court struck per a defense motion.  Plaintiff filed the code compliant declaration on October 11, 2022.

Plaintiff asserts that Dr. Rabbani was retained prior to the initial exchange of experts on August 15, 2022.  (Shemtoub Decl. ¶3).  Plaintiff’s counsel asserts he recently learned that Dr. Rabbani has a history being uncooperative with counsel.   He cited Case # BC695875.  In that case, Plaintiff filed a motion on August 13, 2019, asserting that Dr. Rabbani was no longer testifying in court. (See Decl. of Scott Myers, Esq. dated Aug 13, 2019 in case BC695875 Pg 2:13-15).  Of course, that was years before the designation of Dr. Rabbani as an expert in this case. 

Plaintiff also refers to BC675747, also a case from 2019 in which Dr. Rabbani was a non-retained treating physician.   In that case, a similar issue arose as in BC695875.

Plaintiff’s counsel argues that he retained Dr. Rabbani and did not know he would not be available.   However, as pointed out by Defendant, there is no email, retainer agreement, cancelled retainer payment or anything else to indicate that Dr. Rabbani was actually retained at the time he was included on Plaintiff’s list of retained experts.   Furthermore, as previously uncovered by the Defense, another individual asserted as a retained expert, Carol Hyland, was also never retained and Plaintiff subsequently withdrew this name after the Defense disclosed this to the Court and counsel.   Although Plaintiff’s counsel represented in his declaration that Dr. Rabbani was retained, the Court is skeptical as to the accuracy of the statement.  This is especially true given Defendant’s provided declaration from Dr. Rabbani himself that he was never retained for this case.  A similar declaration was also provided by Ms. Hyland that she was never retained, despite being listed as a retained expert.

To grant Plaintiff’s request to augment witnesses, the Court must find that Plaintiff would not have determined to call that expert, or the failure to call that expert was due to mistake, inadvertence, surprise, or excusable neglect. CCP §2034.620(c).  The code presumes the exercise of reasonable diligence, the absence of such can be problematic.   The trial court shall not grant leave to submit late expert witness information if any of the statutory conditions are not satisfied. (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 421.)  Based on the totality of the circumstances, Dr. Rabbani’s declaration, his prior representations dating back to 2019 in the cases referred to by Plaintiff, Ms. Hyland’s declaration, no supporting documentation that Dr. Rabbani was contacted and retained (e.g., email, retainer agreements, cashed retainer checks, confirming letters, etc.)  the Court concludes that Plaintiff has not met its burden to show that Dr Rabbani was actually retained when the exchange of experts took place, and that Plaintiff, exercising reasonable diligence would not have known he would not be available.

The Court finds that Plaintiff did not, in good faith, have reason to list Dr. Rabbani as a retained expert in the initial expert discovery disclosure, and declaration.   The subsequent delay in the trial was based on an inability to depose all of Plaintiff’s disclosed experts, and as such, the Court views the initial trial date of October 4, 2022, as the appropriate date to base expert discovery cut off.   As mentioned earlier, this is particularly true because Plaintiff initially refused a continuance by the defense for trial.   The subsequent delay in the trial was primarily a result of Plaintiff’s counsel’s schedule and unavailability, including personal scheduling matters the Court sought to accommodate at Plaintiff’s counsel’s request. As a result, the Court agreed to permit depositions of previously disclosed expert witnesses but declines re-opening expert discovery for any other purpose.   It should be noted that the Court did bar augmenting expert witnesses; provided the statutory good cause was provided.  Such a determination was the purpose of the most recent hearings and briefing; and the Court declines such augmentation.

CONCLUSION

Plaintiff failed to comply with CCP §2034.210 and CCP §2034.260.  Plaintiff listed as retained experts multiple individuals who had not been retained, and made inaccurate representations in the accompanying “declaration” that these individuals were retained.  Such representations contradicted representation from the experts themselves in which they assert they were never retained.   Having not properly retained these experts, there has not been compliance with the statutory requirements to augment experts.

Plaintiff’s request to augment experts is denied. 

As an aside, Defense counsel has repeatedly written and argued that they sent checks to Plaintiff’s counsel for the deposition of experts.   Defense counsel advised that these monies have not been returned.  Unless a particular expert will be deposed, these funds shall be returned forthwith.

RULING:

In the event 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

Plaintiff’s Motion to Augment Expert Discovery came on regularly for hearing on October 12, 2022, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, after reviewing the moving and opposing papers and hearing oral argument now rule as follows:

THE MOTION TO AUGMENT EXPERT DISCOVERY IS DENIED.

ALL CHECKS PREVIOUSLY SENT TO PLAINTIFF’S COUNSEL FOR THE DEPOSITION OF RETAINED EXPERTS THAT HAVE BEEN WITHDRAWN BY PLAINTIFF SHALL BE REFUNDED TO DEFENSE COUNSEL WITHIN 15 BUSINESS DAYS OF THE MAILING OF THIS ORDER.

CLERK TO GIVE NOTICE.

IT IS SO ORDERED.

DATE:  October 25, 2022                                 /s/   F.M. Tavelman

                                                                        F.M. TAVELMAN, Judge

                                                                        Superior Court of California

County of Los Angeles