Judge: Holly J. Fujie, Case: 19STCV24611, Date: 2023-03-13 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.


Case Number: 19STCV24611    Hearing Date: March 13, 2023    Dept: 56

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

 

KIMBERLY FAY, et al.,

 

                        Plaintiffs,

            vs.

 

GLENN SOLOMON, et al.,

 

                        Defendants.

      CASE NO.: 19STCV24611

 

[TENTATIVE] ORDER RE: MOTION TO AUGMENT EXPERT DESIGNATION

 

Date:  March 13, 2023

Time: 8:30 a.m.

Dept. 56

Jury Trial: April 24, 2023

 

MOVING PARTY: Plaintiffs

 

RESPONDING PARTY: Defendants

 

The Court has reviewed the moving, opposition and reply papers.

 

BACKGROUND

This action arises out of a landlord/tenant relationship.  On February 14, 2023, Plaintiffs filed a motion to augment expert witness disclosure (the “Motion”).  The Motion seeks to add Richard Devine, Ph.D. (“Devine”) as an expert economist in lieu of Plaintiffs’ currently designated expert William Ingersoll, Ph.D. (“Ingersoll”).

 

 

EVIDENTIARY OBJECTIONS

            Defendants’ objections to the reply brief (the “Reply”) are SUSTAINED.

 

DISCUSSION

            Under California Code of Civil Procedure (“CCP”) section 2034.620, the court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied: 

 

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses. 

 

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits. 

 

(c) The court has determined either of the following: 

(1)   The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness. 

 

(2)   The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: 

 

(A)  Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. 

 

(B)  Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action. 

 

(CCP § 2034.620, subds. (a)-(c).)  

 

 

Plaintiffs provide evidence that they initially intended to retain Devine as an expert witness, but did not do so after, in 2022, their counsel learned that Devine might not be available to continue testifying as an expert witness due to health concerns.  (Declaration of Frances M. Campbell (“Campbell Decl.”) ¶ 3.)  As a result of their concerns over Devine’s ability to participate as an expert, Plaintiffs thereafter retained Ingersoll, who they designated as their expert witness on May 31, 2022.  (See id., Exhibit A.)  On May 31, 2022, Defendants also disclosed their expert witnesses, which include two experts related to economic damages.  (Campbell Decl. ¶ 4, Exhibit B.)  On June 27, 2022, the trial was continued from July 18, 2022 to April 24, 2023.  (Campbell Decl. ¶ 5.)  That day, Plaintiffs and Defendants agreed that deadlines related to expert discovery would track the new trial date.  (Id.)  

 

In February 2023, Plaintiffs’ counsel learned that Devine had recovered from his illness and was again available to testify as an expert witness.  (Campbell Decl. ¶ 6.)  Despite meet and confer efforts, Defendants did not agree to stipulate to allow Plaintiffs to augment their expert witness list.  (See Campbell Decl. ¶¶ 7-8.)  Plaintiffs offered to pay Devine’s hourly fee if Defendants decide to depose him.  (Campbell Decl. ¶ 9.)  Plaintiffs have not yet deposed Defendants’ economic experts.  (Campbell Decl. ¶ 10.)

           

            Defendants argue that they would be prejudiced by allowing Plaintiffs to augment their expert designations and that Plaintiffs lack the authority to withdraw Ingersoll because he has already been deposed.  Ingersoll was deposed on June 23, 2022.  (Declaration of Patrick J. McCormick (“McCormick Decl.”) ¶ 1.)  Defendants’ experts and counsel analyzed Ingersoll’s findings and Defendants’ litigation strategy has been based, in part, on Ingersoll’s opinions.  (See McCormick Decl. ¶¶ 2, 9.)

 

            Defendants argue that under County of Los Angeles v. Superior Court (Hernandez) (1990) 22 Cal.App.3d 647 (“Hernandez”), an expert witness may be withdrawn only if they have not already been deposed.  The Court disagrees with Defendants’ interpretation of the scope of the ruling in Hernandez.  In Hernandez, the appellate court considered whether a party may withdraw its designation of a yet-undeposed expert witness while still retaining that expert as a consultant, thereby precluding the opposing party from deposing or retaining the expert.  (See Hernandez, supra, 222 Cal.App.3d at 700, 703.)  The Hernandez court determined that an expert witness could be withdrawn as an expert and continue being retained as a consultant in circumstances where the expert had not yet been deposed.  (See id. at 703-04.)  Here, even if Plaintiffs do not call Ingersoll to testify during trial, because he has been deposed, Defendants are entitled to call him as a witness.  (See CCP § 2034.310.) 

 

The Court has taken into consideration Defendants’ reliance on Ingersoll’s opinions thus far, their ability to maintain their defense, and Plaintiffs’ promptness in seeking to augment their expert designations once they learned of Devine’s recovery.  Notably, Defendants do not argue or present evidence that they will be unable to depose Devine or be ready for trial by April 24, 2023.  (See Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1479.)  Furthermore, Defendants’ economic experts have not yet been deposed.  For these reasons, the Court GRANTS the Motion and will allow Plaintiffs to add Devine as an expert.  Plaintiffs are to be responsible for paying Devine’s fees in the event Defendants choose to depose him.

 

             Moving party is ordered to give notice of this ruling.

 

 

 

 

 

 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing. 

 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

 

       Dated this 13th day of March 2023

 

 

 

 

Hon. Holly J. Fujie

Judge of the Superior Court