Judge Gregory Keosian, Case 18STCV09778 2022-10-19 Tentative Ruling

Plaintiff Mehrdad Eshaghian’s Motion to Augment or Amend Expert Opinion of Steven Valdez is DENIED.

Defendant La Brea Collection, LLC’s Motion in Limine No. 6 to exclude Steven Valdez’s Testimony is DENIED.

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following:

(1) Augment that party's expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.

(2) Amend that party's expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.

(Code Civ. Proc. § 2034.610.) “A motion under subdivision (a) shall be made at 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.” (Code Civ. Proc. § 2034.610, subd. (b).) A party seeking this relief must also provide a meet and confer declaration. (Code Civ. Proc. § 2034.610, subd. (c).)

Plaintiffs Mehrdad Eshaghian and Info Lighting, Inc. seek leave to submit an additional report and opinion for their designated expert Steven Valdez, who has been designated to testify concerning the fair market value of the property and lease at issue in this litigation. Specifically, although Valdez was timely designated as an expert concerning “fair/reasonable market value evaluation,” Plaintiffs contend that they were made aware during Valdez’s deposition on August 16, 2022, that the scope of his testimony and opinions were limited to the rental value as of September 2018 — meaning that his testimony did not address the fair rental value of the property at any point after Defendant’s 3-day notice was served on Plaintiffs, while they occupied the property as holdover tenants. (Motion at p. 3.) Plaintiffs seek leave to supplement Valdez’s initial report to include this time period. (Motion at p. 5.)

What’s more, Plaintiffs contend that they are not required to seek judicial leave to supplement an expert report, but have only filed this motion in response to Defendant’s efforts to exclude Valdez’s testimony and indications that it would move to exclude any new testimony from this expert under Code of Civil Procedure § 2034.300. (Motion at pp. 3, 5.) Plaintiffs argue that leave should be granted under Code of Civil Procedure § 2034.610, only in the alternative. (Motion at p. 5.)

Defendant in opposition contends that Plaintiffs have unreasonably delayed submitting their proposed supplemental opinion, becauseValdez’s original report, produced December 30, 2021, repeatedly states that his opinion is based on an effective date of September 1, 2018, and that his analysis was retrospective as to that date. (Opposition Exh. 2.) Thus Defendant argues that it is unreasonable for Plaintiffs to contend that they only became aware of Valdez’s limitations in his August 2022 deposition. (Opposition at pp. 4–5.), Defendant further contends that Plaintiffs unreasonably delayed again after taking Valdez’s deposition, waiting a month until September 14, 2022, to bring the present motion, now set for hearing after the close of expert discovery and 15 days before trial. (Opposition at p. 12.) Defendant argues that it would be prejudicial to allow supplementation at this late juncture, because Defendant would have to take Valdez’s deposition once more, then brief its own expert on the new testimony, all while trial was days away. (Opposition at p. 12.)[1]

Plaintiffs are partly correct that no motion or leave of court is required for a party to supplement an expert report. Code of Civil Procedure § 2034.610 allows a court to grant leave to “[a]ugment . . . [a] party’s expert witness list and declaration” by adding new experts, or to “[a]mend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.” (Code Civ. Proc. § 2034.610, subd. (a), (b).) Thus while leave is required to add an expert or amend a declaration concerning the substance of an expert’s testimony, no leave is required for the mere production of a new or amended report. And while Plaintiffs’ motion might be construed as a request for leave to amend the expert declaration, Plaintiff’s expert declaration already designates Valdez as an expert for his testimony concerning the “fair/reasonable market value evaluation” of the leased property, which reasonably includes the subject matter of his proposed supplemental report.

Plaintiffs are thus correct to cite the case of Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, in which the court stated as follows:

The statutory scheme includes detailed procedures to be followed if a party wishes to augment its expert witness list to add new witnesses or amend the general substance of the testimony the expert is expected to give. (§ 2034.610.) Similarly, there are procedures to be followed if a party fails to turn over the expert witness information described in section 2034.260 by the specified date, but wishes to remedy the error with tardy submission of an expert witness list. (§§ 2034.710 & 2034.720.) There is not, however, any statutory procedure for turning over expert reports and writings created after the specified date when the rest of the expert witness information was timely produced. Since the Legislature provided a method to amend the declaration (§ 2034.610, subd. (a)(2)), it apparently anticipated that expert witnesses might prepare their opinions after the specified date. Yet it chose not to address reports and writings created as part of the ongoing preparation.

We cannot, as Penny Lane implicitly invites us to do, declare a rule that expert reports and writings must be created by the specified exchange date or not at all. As explained, the Legislature appears to have anticipated that experts would continue their preparations after the specified date. We are not at liberty to read into the statute a restriction on such activity where none exists. “ ‘[In] construing [a] statut[ory] provision[ ] a court is not authorized to insert qualifying provisions not included and may not rewrite the statute to conform to an assumed intention which does not appear from its language.’

(Boston, supra, 170 Cal.App.4th at pp. 951–952.) Thus Plaintiffs are not required to seek leave of court to alter or supplement an expert opinion that falls within the bounds of the subject matter described for that witness in the expert declaration.[2]

This is not to say, however, that parties have carte blanche to amend expert testimony up to the date of trial, or that Plaintiffs in this matter have acted reasonably with respect to the preparation of their expert. The court in Boston v. Penny Lane Centers, Inc. addressed this point specifically:

That we find no statutory prohibition against the continued creation of expert reports and writings after the specified date does not mean that a trial court is powerless to prevent or respond to abuse of expert witness discovery procedures. As a general matter, the trial court is empowered to exercise superintendency over discovery. (See People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 991, 114 Cal.Rptr.2d 760 [“Recognizing that discovery procedures are subject to misuse, the Civil Discovery Act authorizes the trial court to limit discovery where appropriate.”].) For example, section 2019.020, subdivision (b) provides that, “on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.” With regard to expert witness discovery in particular, section 2034.250, subdivision (b) states, in relevant part, “The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or **721 undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions: [¶] ... [¶] (3) That the exchange be made only on specified terms and conditions. [¶] (4) That the production and exchange of any reports and writings of experts be made at a different place or at a different time than specified in the demand.” Accordingly, on the motion of a party, a trial court may issue a protective order requiring that all expert reports and writings be created and produced by a specified exchange date.

Additionally, section 2034.300 empowers the court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to produce expert reports and writings as required by section 2034.270. (§ 2034.300, subd. (c).) If the trial court concludes that a party intentionally manipulated the discovery process to ensure that expert reports and writings were not created until after the specified date, it may find the failure to produce the reports and writings was unreasonable and exclude the expert's opinions. Accordingly, a party who fails to instruct its expert to create all reports and writings before the specified date does so at its own risk.

Under the above authority, Plaintiffs do not need to come to court to seek leave to amend or supplement an expert report or opinion. For this reason, the present motion, which seeks this leave, is properly DENIED. The fact that Plaintiffs need no leave of court to supplement Valdez’s opinion, however, does not protect them from a potential motion to exclude Valdez’s testimony under Code of Civil Procedure § 2034.300.

Defendant has filed a motion in limine to exclude Valdez’s testimony, but they have not demonstrated entitlement to relief under Code of Civil Procedure § 2034.300. That statute states:

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:

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

The case of Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4^th 936, is once again instructive. There, the court addressed a party's purported failure to "[p]roduce reports and writings of expert witnesses" under Code of Civil Procedure § 2034.300, subd. (c). (Id. at p. 954.) The trial court had denied a motion to exclude expert witness testimony under subsection (c), and the appellate court affirmed, on the grounds that (1) the parties were provided with adequate notice of the expert reports in time to prepare for trial, and (2) the moving parties failed to depose the experts before trial based on strategic considerations and cost, not because there was not enough time. (Id. at p. 953.) The court stated: "If any unfairness arising from the proffering party's late or incomplete disclosure was exacerbated by the party seeking exclusion, the court is less likely to find the conduct of the party offering the expert to be unreasonable." (Id. at p. 954.) The court also found that the failure to turn over reports by the specified date was not part of a pattern of misconduct, and was not done in bad faith. (Ibid.)

Here, Defendant has not demonstrated entitlement to exclusion under Code of Civil Procedure § 2034.300. First, Defendant’s Motion in Limine No. 6 is directed toward Valdez’s exclusion only on grounds of relevance, not on the grounds that Valdez’s later report was unreasonably withheld. Indeed, Plaintiff’s proposed augmentation of Valdez’s testimony would obviate Defendant’s objection based on the irrelevance of his testimony.

Nor has Defendant shown that Valdez’s report or deposition testimony have been unreasonably withheld prior to trial. It is true that a diligent analysis of Valdez’s original report ought to have revealed how limited in scope Valdez’s testimony would be, even without the benefit of deposition. But Defendant has been aware of Plaintiff’s desire to augment Valdez’s testimony since the motion for leave was filed on September 14, 2022. Plaintiff correctly argues that, as this motion was pending, the parties might have taken his deposition. The tactical decision “to put all your eggs into this motion basket as opposed to proceeding on parallel tracks and deposing the witnesses while simultaneously moving to preclude their testimony” was one of the factors that militated against expert exclusion in the Boston case. (Boston, supra, 170 Cal.App.4th at p. 954.)

Accordingly, Plaintiff’s motion for leave to augment is DENIED, as is Defendant’s motion in limine No. 6 with regard to Valdez’s testimony.

[1] The window for deposition is further limited by the unavailability of Plaintiffs’ counsel, who in a September 21, 2022 email to Defendant’s counsel stated that he would be unavailable from October 10 to October 18, 2022. (Opposition Exh. 11.)

[2] Defendant attempts to distinguish Boston on the facts, arguing that the party making supplemental disclosures in that had acted reasonably, while Plaintiff has acted unreasonably and prejudicially. (Opposition at pp. 15–16.) But this argument only addresses the criteria applicable to a motion to exclude expert testimony under Code of Civil Procedure § 2034.300, which was at issue in the Boston case. This is not a motion to exclude under that statute, but a motion for leave to supplement an expert witness opinion, which Boston affirms is not necessary.