Judge John J. Kralik, Case Number: 21BBCV00016, Date: 2023-06-30 Tentative Ruling

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Superior Court of California

County of Los Angeles

Plaintiff Health Pro Pharmaceutical Consulting and Management, Corp. d/b/a Bellaire Pharmacy (“Plaintiff”) is a community retail pharmacy under Dr. Armen Minasian as pharmacist-in-charge as of January 2007. (SAC, ¶15.) Defendant Lusine Mardyan (“Ms. Mardyan”) was Plaintiff’s employee from February 2007 to December 6, 2019. (Id., ¶16.) Defendant Ana Khimonidi (“Ms. Khimonidi”) was also an employee of Plaintiff until her resignation in September 2019. (Id., ¶18.)

Plaintiff alleges that in 2019, Plaintiff reconstructed its management practices such that Defendants no longer had the freedom they enjoyed in the past. (Id., ¶19.) Plaintiff alleges that in mid-October to early-November 2019, Ms. Mardyan expressed to Dr. Minasian that her husband Defendant Arman Adamayan (“Mr. Adamayan”) was pressuring her to stop working and she stated over several occasions that she did not want to babysit at home and instead expressed her interest in running her own pharmacy and began referring to Plaintiff’s patients as “her patients.” (Id., ¶¶20-23.) On the first or second Saturday of November, Dr. Minasian met with Mr. Adamayan where Mr. Adamayan allegedly expressed that he wanted Ms. Mardyan to stay home to care for their 3-year-old son, he was financially secure and did not need Ms. Mardyan to work, and assured Dr. Minasian that there was absolutely no talk of any sort of Ms. Mardyan working anywhere or starting her own pharmacy at the moment. (Id., ¶¶24-28.) Plaintiff alleges that Dr. Minasian observed Ms. Mardyan having quiet conversations with Plaintiff’s patients and delivering medications in her last month, which he assumed was Ms. Mardyan’s way of saying goodbye to patients. (Id., ¶¶29-30.)

Plaintiff alleges that in early January 2020, Dr. Minasian states that he started receiving calls from patients to take them off its monthly refill list because they were changing pharmacies and one patient stated that Ms. Mardyan called them to state she would deliver the medication. (Id., ¶¶33-35.) Plaintiff alleges that it discovered that Mr. Adamayan and Ms. Mardyan’s representations were false on January 10, 2020 and caused a cease-and-desist letter to be sent to Ms. Mardyan to no avail. (Id., ¶¶38-40.) Plaintiff alleges that from January to March of 2021, nearly 200 of Plaintiff’s patients (out of 400) switched to another pharmacy—Defendant OB Medical Supplies & Pharmacy (“OB”). (Id., ¶¶41-42.) In early March, Dr. Minasian saw that Ms. Mardyan had an ad for her new pharmacy, Defendant AGM RX, Inc. dba AGM Pharmacy (“AGM”). (Id., ¶45.) Plaintiff alleges that patients said that Ms. Mardyan, Mr. Adamayan, and AGM hired Ms. Khimonidi and that Ms. Khimonidi was the one contacting patients and telling them about their new location. (Id., ¶46.) Plaintiff alleges that Ms. Mardyan, Mr. Adamayan, Ms. Khimonidi, AGM, OB, and Defendant Kanaka Durga Vadlapatla (“Ms. Vadlapatla”) conspired to take Plaintiff’s patients. (Id., ¶61.)

Plaintiff also alleges that on July 26, 2019 (when Dr. Minasian was on a trip to Armenia), Ms. Mardyan had contacted tech support for the administrative program used by Plaintiff to maintain patient information, without knowledge or consent of Plaintiff, in order to download patient files to benefit herself, Mr. Adamayan, AGM, and OB. (Id., ¶¶50-53.) Plaintiff alleges that Ms. Mardyan again downloaded information on September 24, 2019. (Id., ¶¶54-55.)

The second amended complaint (“SAC”), filed July 1, 2021, alleges causes of action for: (1) fraud and deceit against Ms. Mardyan and Mr. Adamayan; (2) intentional misrepresentation Ms. Mardyan and Mr. Adamayan; (3) negligent misrepresentation against Ms. Mardyan and Mr. Adamayan; (4) unfair business practices against Ms. Mardyan, Mr. Adamayan, AGM, and OB; (5) civil conspiracy against all Defendants; (6) intentional interference with prospective economic relations against Ms. Mardyan, Mr. Adamayan, AGM, and OB; and (7) negligent interference with prospective economic relations against Ms. Mardyan, Mr. Adamayan, AGM, and OB.

On August 25, 2022, Plaintiff dismissed with prejudice Defendant Kanaka Durga Vadlapatla from the complaint.

On January 29, 2024, Plaintiff filed a motion for leave to submit a tardy expert witness list.

(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.

(b) A motion under subdivision (a) shall be made 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.

The court shall grant leave to submit tardy expert witness information 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 absence of a 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.

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

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

(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

Plaintiff moves for leave to submit a tardy expert witness list on the grounds that this will not prejudice Defendants, Plaintiff would be prejudiced if relief was denied, and that it failed to submit the information as a result of mistake and excusable neglect, it promptly sought to serve a copy of the list and meet and confer upon discovering the mistake and neglect, and its experts have been reading and willing to be deposed.

Plaintiff argues that its prior counsel Moussa Helo resigned on August 11, 2023 and Plaintiff retained new counsel Gregor Aleksanian in August 2023.[1] In his declaration, Mr. Aleksanian states that attempted to catch up with the case and mistakenly and negligently believed that the expert designation had already been performed by Mr. Helo at the time he was handling the case. (Aleksanian Decl., ¶2.) He states that on March 30, 2022, Mr. Helo had served a request for expert information with an April 25, 2022 deadline, and he did not receive any information on that date from Defendants. (Id., ¶3.) He states that the case was continued on May 3, 2022 by the Court with no new request for expert discovery by either party. (Id., ¶4.) At the September 6, 2023 hearing, the Court continued the trial from September 26, 2023 to February 20, 2024 and ordered that discovery cut-off deadlines would not be extended. Mr. Aleksanian states that he mistakenly thought that expert demand and exchange did not need to be done once more and he would consider this to be mistake or excusable neglect due to the fact that at the time he had just started practicing law for only 2 months.[2] (Id., ¶5.) He states that he did not calendar new dates for the demand and exchange in accordance with the new trial date. (Id.) Plaintiff argues that it learned of its failure to submit an expert witness list on January 10, 2024 when defense counsel attempted to meet and confer regarding their intentions of filing a motion in limine to exclude Plaintiff’s expert witness. Plaintiff argues that it attempted to meet and confer multiple times on this issue.

In determining whether there are sufficient grounds to allow the late designation of experts by Plaintiff in this case, the Court considers the factors in CCP § 2034.720.

Under section 2034.720(a), Plaintiff argues that Defendants have not relied on the absence of a list of expert witnesses. In opposition, Defendants argue that they do not seek to call any experts in support of their defense and would only do so if Plaintiff had called experts in a timely fashion or should an untimely expert exchange be allowed. This case was previously ready for trial, and both sides had made the choice not to call expert witnesses. Changing course now would require both Plaintiff and Defendants to retain experts in a case where neither previously thought it was necessary. Defendants have relied upon the lack of designation of any experts in failing to retain experts previously.

With respect to subsections (b) and (c) regarding Defendants’ prejudice and Plaintiff’s mistake/excusable neglect, the Court finds that Plaintiff has not made a satisfactory showing.

Defendants argue that they would be prejudiced because would have to expend more expenses if Plaintiff may, at the eleventh hour, move the FSC and trial date again as a result of Plaintiff’s own failure to designate experts. They also argue that their ability to assess value in interest of settlement in advance of trial would be negatively impacted. Plaintiff argues that it only became aware of the lack of expert list on its part when Defendants served their motion in limine and that its current counsel believed that prior counsel had performed the expert exchange.

However, the failure to exchange an expert witness list was the conscious choice (or mistake) of Plaintiff’s counsel, Mr. Helo. As a result of the lack of expert witness list, Defendants state that they too decided not to designate experts, would only retain experts in response to Plaintiff’s experts (if any), their valuation of the case and settlement would be impacted, and they filed a motion in limine to exclude Plaintiff’s experts. While counsel changed for Plaintiff to Mr. Aleksanian in August 2023, Mr. Helo and Mr. Aleksanian are from the same law firm, such that Mr. Aleksanian was in receipt of all the documents filed and exchanged in this case. The fact that Mr. Aleksanian is now the attorney assigned to this case from this law firm does not amount to a showing of mistake or negligence on the part of Mr. Aleksanian. The date to exchange expert witness lists had already passed over a year prior to Mr. Aleksanian being assigned to the case by his law firm. It is unclear what mistake or excusable neglect Mr. Aleksanian engaged in. Rather, any declaration for mistake or excusable neglect should have been filed by Mr. Helo. The Court finds that subsection (b) and (c)’s factors have not been satisfied.

Jury trial is currently scheduled for February 20, 2024 and shall remain on this date.

[1] The Court notes that Mr. Helo and Mr. Aleksanian are both a part of the law firm Albert Abkarian & Associates.

[2] Mr. Aleksanian’s bar number is 348770. He was admitted to the State Bar on February 9, 2023.