Judge Jill Feeney, Case 19STCV27144 2023-03-20 Tentative Ruling

On July 31, 2019, Evangelina Alvarenga de Cabrera (“Plaintiff”) filed a Complaint against Kelly Ann Lewis Bortman and Eric Bruce Bortman. Plaintiff’s Complaint alleges the following causes of action: (1) motor vehicle, and (2) general negligence.

On February 9, 2023, the Court granted Defendant Kelly Bortman’s ex parte motion to continue trial. Discovery and motions were closed except for a motion by Plaintiff to conduct further depositions of Defendant’s experts due to late production of expert documents.

Plaintiff seeks to preclude Defendant Kelly Ann Bortman’s expert witnesses (Dr. Rhee, Dr. Albertsone, and Justin Brink) from testifying at trial pursuant to Code Civ. Proc., section 2034.300. Plaintiff argues that all three experts failed to produce the documents requested by Defendants prior to their depositions. Plaintiff also argues that Defendant’s counsel made misrepresentations to the Court regarding her experts’ availability.

Defendant Kelly Bortman argues that motions are closed and Plaintiff was not given leave to file this particular motion. Bortman also argues that all of her experts’ files have been produced and that her counsel did not misrepresent the experts’ availability.

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:¿

Failure to comply with expert designation rules may be found to be unreasonable when a party’s conduct gives the appearance of gamesmanship, such as undue rigidity in responding to expert scheduling issues. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 499.)

On February 9, 2023, discovery and motions were closed, except for a motion by Plaintiff to conduct further depositions of Defendant’s experts due to the late production of expert documents. Plaintiff chose not to file the motion that was still permitted, but instead filed a motion to exclude the experts. The motion is denied on this basis.

Plaintiff’s counsel testifies that in December 2022, the Court precluded Defendant’s experts from testifying at trial because she unreasonably failed to produce them for deposition. (Taylor Decl., ¶ 2.) When Defendant filed a motion to reopen discovery, Plaintiff’s counsel argued that Defendant did not meet her burden of establishing diligence and that Defendant’s counsel refused to produce correspondence showing her proposed deposition dates in December were truly the first available. (Id., ¶5.) Plaintiff’s counsel now alleges that during expert depositions, Defendant’s experts testified that they did not know the original discovery cutoff deadline was in October 2022 or that they were available prior to October 2022.

The deposition transcript for Dr. Rhee’s deposition shows that Dr. Rhee was unavailable for deposition in October, but could not remember stating he would be unavailable for deposition until December 2022. (Motion, pdf p.90.) Dr. Rhee also stated in emails with Plaintiff’s counsel that he has no independent recollection of the December deposition dates and most likely set them telephonically with Defendant’s counsel. (Motion, Exh. 8.) Dr. Rhee believe trial was set for January 10, 2023 and preferred to be deposed closer to the trial date. (Id.) Dr. Alberstone testified in her deposition that she was unavailable for deposition in October 2022 and did not know whether her earliest date of availability for deposition was in December 2022. (Motion., pdf p. 155.) Dr. Alberstone did not remember because she has been out of town and busy. (Id.)

The evidence does not show that Defendant’s counsel misrepresented her experts’ availability. Rather, none of the experts remembered how or when they determined they would be available for deposition in December 2022. Even if Dr. Rhee’s custom is to be deposed closer to the trial date, he consistently states he has no recollection of the conversations setting his availability for December 2022. There is simply no evidence to show that Defendant’s counsel engaged in gamesmanship and misled Plaintiff’s counsel and the Court regarding her experts’ availability.

Plaintiff next argues that the experts failed to produce their documents at least three business days prior to their depositions as required by Code Civ. Proc., section 2034.415.

Dr. Brink finished producing his records on January 29, 2023, the day of his deposition. (Motion, pdf p.11.) Dr. Rhee admitted that his records were missing emails between himself and Defendant’s counsel and produced them two days after his deposition. (Motion, pdf p. 14.) Finally, Dr. Alberstone did not produce emails between herself and Defendant’s counsel and did not produce Plaintiff’s Form Interrogatories which she referenced. (Motion, pdf p.15.)

With respect to the email correspondence that Dr. Rhee and Dr. Alberstone did not produce, they are not relevant to their reports and writings on the subject collision. Moreover, Dr. Rhee did produce the emails after realizing they were missing. Because the emails are not relevant to the experts’ reports and writings on the subject accident, Kelly did not unreasonably fail to comply with the requirements of Code Civ. Proc., section 2034.300.

With respect to Dr. Brink, Dr. Brink did produce his documents late. Additionally, Plaintiff’s counsel testifies that he never produced documentation on the tasks he performed or how the 16.25 hours he worked on the case was accounted for. (Taylor Decl., ¶17.) However, it appears Dr. Brink did produce the majority of his reports and writings. Thus, his late production does not constitute an unreasonable failure to comply with statutory requirements.

The Court finds that the experts’ late production of documents is not an unreasonable failure on Defendant’s part to comply with statutory requirements. Additionally, it is error for the court to exclude an expert in this instance absent evidence of gamesmanship and prejudice. (Du-All Safety, LLC v. Superior Court (2019) 34 CA5th 485, 497-98.) Here, there is no evidence of gamesmanship in Defendant’s conduct. The Court already ruled on February 9, 2023 that Plaintiff was allowed to file a motion to conduct further depositions of these experts due to any late production of documents in the event that the parties could not reach an agreement on this issue themselves. Hence, there was an available remedy for any issue that may have been created as a result of the late production of documents.