Judge: H. Jay Ford, III, Case: 19SMCV01498, Date: 2023-05-18 Tentative Ruling

Case Number: 19SMCV01498    Hearing Date: May 18, 2023    Dept: O

Case Name:  Moda v. Finnegan and Diba, et al.

SUBJECT:                 MOTION FOR PROTECTIVE ORDER

MOVING PARTY:   Defendants/X-Complainant Kasey Diba, an individual and Finnegan & Diba, a Law Corporation 

RESP. PARTY:         Plaintiff/X-Defendant Kevin Moda

RULING AFTER HEARING

            Defendants Diba and Finnegan & Diba’s Motion for Protective Order is GRANTED pursuant to CCP §2034.250. 

            Defendant served a demand for expert information exchange on 3-8-23.  However, the time to demand an exchange of expert information is “no later than the 10^th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.”  CCP §2034.220.  Defendant issued a demand for exchange of expert witness information on 9-26-22 and the exchange was set for 10-18-22.  See Dec. of J. Saunders, ¶7.  Both parties exchanged expert witness information on 10-18-22.  Id. at ¶8. 

            Aat the 5-17-22 hearing on Sichi’s Demurrer to the Third Amended Complaint the court continued the trial date to 12-5-22.  The court explicitly stated that the only cutoff that was extended was the expert discovery cutoff.  The court stated that the expert discovery cutoff would be based on the new trial date of 12-5-22.  The court’s continuance of the expert discovery cutoff date did not grant leave to serve a new demand to exchange of expert witness information that had already occurred, nor did it reopen discovery in general. 

            Defendant establishes that Plaintiff’s 3-8-23 demand for expert information exchange was untimely.  If the demand for an exchange was made too early or too late, any party that was served with the demand may promptly move for a protective order that the demand be quashed. CCP § 2034.250(a),(b)(1).  Defendant establishes grounds for issuance of the protective order.

            The court notes Plaintiff raised CCP §599 in its opposition.  CCP §599 does not apply to the court’s continuance of the trial the on 5-17-22, or to the parties’ exchange of expert information 10-18-22.  The original trial date in this action was set for 5-2-22.  There was no trial date set as of March 19, 2020 (the operative date of section 599). Therefore, there were no discovery deadlines that “have not already passed as of as of March 19, 2020.”  Plaintiff cited no other authority that would allow a second expert witness exchange without leave of court.  Even if the opposition were considered, Plaintiff fails to establish that his March 2023 demand for exchange of expert witness information was timely.