Judge Kerry Bensinger, Case Number: 21STCV16532, Date: 2023-09-26 Tentative Ruling

On May 3, 2021, Plaintiff, Martha Ann Presley, initiated this action against Defendants[1], Walmart Inc. (“Walmart”) and Cintas Corporation No. 2 (“Cintas”), for injuries Plaintiff sustained when she tripped and fell on a floor mat in a Walmart Store.

On April 7, 2023, Walmart filed an Ex Parte Application to Continue Trial and Related Dates. On April 10, 2023, the Court[2] granted, in part, and denied, in part Walmart’s application. Pursuant to Walmart’s request, trial was continued to September 27, 2023. Discovery and all related dates remained tied to initial trial date of June 30, 2023.

Based on the June 30, 2023 trial date, Walmart and Cintas timely served Plaintiff with their demands for exchange of expert designations on April 11, 2023 and April 19, 2023, respectively. Cintas served Plaintiff with its expert designations on May 11, 2023. Walmart did not designate any experts. Plaintiff did not serve expert designations.

On June 27, 2023, Plaintiff filed an Ex Parte Application to Continue FSC and Trial Dates and to Extend All Related Dates Including Defendant’s Motion for Summary Judgment. When Walmart filed opposition to the application and referenced Plaintiff’s failure to exchange expert witness designation, Plaintiff’s counsel realized for the first time that she failed to timely designate experts. Thereafter, Plaintiff’s counsel worked to prepare and complete an expert witness designation. Plaintiff served Walmart and Cintas with the designation on June 30 2023.

On July 12, 2023, Plaintiff filed an Ex Parte Application for a Tardy Expert Designation. On July 13, 2023, the Court denied the application for lack of exigency and directed Plaintiff to file a noticed motion or obtain a stipulation from all parties.

On July 20, 2023, Plaintiff filed an Ex Parte Application to Continue Walmart’s Motion for Summary Judgment/Adjudication Hearing Date, FSC, and Trial Date and Extend All Related Dates. On July 21, 2023, the Court granted in part and denied in part Plaintiff’s application. Pursuant to Plaintiff’s request, trial was continued to February 8, 2024 and Walmart’s summary judgment motion was specially set to be heard on October 24, 2023. All discovery was closed with the exception of the hearing on the tardy expert designation.

On August 29, 2023, Plaintiff filed this Motion for Tardy Expert Designation. Walmart and Cintas have each filed an Oppositions. Plaintiff filed a Reply.

Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any person whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. (Code Civ. Proc., § 2034.210, subd. (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.” (Code Civ. Proc., § 2034.710, subd. (a).) The motion shall be made a sufficient time in advance of the time limit for the completion of discovery 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).) The motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2034.610, subd. (c).)

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;

(c) the court has determined that the moving party did all of the following: (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; and (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; and,

(d) the order is conditioned on the moving party making the expert available immediately for a deposition, 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’s counsel has satisfied this requirement. (Marzban Decl., ¶¶ 6, 9.)

Plaintiff seeks leave to submit a tardy expert witness designation and reopen discovery due to a clerical error. After consideration of the factors, the Court finds Plaintiff is not entitled to an order relieving Plaintiff of her waiver to submit an expert witness designation.

Walmart argues it relied on the absence of Plaintiff’s expert witness designation when it did not retain a rebuttal liability expert and when it filed its summary judgment motion. Plaintiff argues Walmart cannot show reliance on either ground. First, Walmart failed to designate any experts. Second, Walmart filed its summary judgment motion before serving its demand for exchange of expert designations. Plaintiff’s arguments have merit. Walmart failed to designate any experts. “Our system requires defendants participate in the litigation essentially simultaneously with plaintiff.” (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1027.) As such, Walmart should have designated experts, including a liability expert, if it anticipated Plaintiff would do the same. Walmart failed to do so and cannot now claim reliance on Plaintiff’s missing expert designations. Further, Walmart filed its motion for summary judgment on March 13, 2023 and later served its demand for exchange of expert designations on April 11, 2023. Walmart could not have relied on Plaintiff’s expert witness designation, served or not. Cintas does not discuss at all having relied on Plaintiff’s missing expert witness list. As such, this factor weighs in Plaintiff’s favor.

Plaintiff argues Walmart and Cintas will not suffer prejudice, and further, Plaintiff has proposed solutions to resolve any potential prejudice to Defendants. Those solutions include, but are not limited to, allowing Walmart to designate experts and Cintas to supplement their expert designation; making two of Plaintiff’s experts available for deposition before any defense expert is deposed; and paying for the defense depositions of Plaintiff’s experts. Walmart contends it will be prejudiced if discovery is opened at this late stage but does not otherwise offer any insight into how they will suffer prejudice. Cintas argues that it will be prejudiced by having to incur additional expenses in having to contend with Plaintiff’s expert’s opinions. However, Plaintiff has already offered various solutions which will mitigate Cintas’s concerns. (See Marzban Decl., ¶ 7.) This factor also weighs in Plaintiff’s favor.

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

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

(c)(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.

Plaintiff argues the failure to serve a timely expert witness list is the result of mistake, inadvertence, or excusable neglect. Laura Motaghy, legal secretary for Plaintiff’s counsel, explains that she inputted the trial date of September 27, 2023 into calendaring software which automatically generated an expert exchange date of August 8, 2023. Plaintiff’s counsel proceeded with this case using this date and other deadlines set based on a September 27, 2023 trial date. Ms. Motaghy, however, did not realize that discovery and all related dates remained tied to the prior June trial date. (See Motaghy Decl.) Plaintiff’s counsel represents having learned of the mistake on June 27, 2023 when Cintas filed opposition to Plaintiff’s ex parte application. Thereafter, Plaintiff’s counsel prepared and served Walmart and Cintas with Plaintiff’s expert designation on June 30, 2023. Plaintiff’s counsel further explains believing Walmart’s and Cintas’s demands for exchange of expert designations in April of 2023, and Cintas’s service of its expert witness designations in May of 2023, to be early. Plaintiff satisfies prongs (c)(1) and (c)(3).

Plaintiff also satisfies prong (c)(2). Fifteen days later after learning of the mistake, on July 12, 2023, Plaintiff filed an ex parte application for tardy expert designation. The Court could not grant Plaintiff’s application because a motion for tardy expert designation cannot be accomplished by ex parte application. (See 7/13/23 Minute Order.) As required by the Eighth Amended Standing Order, the Court directed Plaintiff to file a noticed motion. Plaintiff did so on August 29, 2023.

Walmart and Cintas argue Plaintiff did not promptly seek leave to serve a tardy expert designation. Plaintiff originally reserved a hearing date of August 7, 2023 for this motion yet inexplicably continued the hearing to this date of September 27, 2023 and filed its motion on August 29, 2023. However, waiting until August 29, 2023 to seek relief by noticed motion is not beyond the pale. Moreover, when considering Plaintiff first attempted to rectify her error by ex parte application on July 12, 2023, Plaintiff demonstrates prompt action.

The Court must grant leave to a party to file a tardy expert designation if all the conditions are met. (Code Civ. Proc., § 2034.720.) Here, Plaintiff meets all the conditions.

Plaintiff must immediately make her experts available for deposition and is responsible for the costs of the depositions, including the court reporter fee, Plaintiff’s expert’s time, and reasonable fees related to defense counsel’s time to prepare and take the deposition. Plaintiff’s experts’ depositions are to take place before the depositions of any defense expert. Additionally, Plaintiff is limited to offering one liability expert witness. Defendants Walmart, Inc. and Cintas Corporation No. 2 designation of supplemental and responsive experts and discovery cut-off related thereto shall be tied to the February 8, 2024, trial date.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Plaintiff dismissed Wal-Mart Associates, Inc., Wal-Mart Realty Company, Wal-Mart TRS, LLC, Sandstone Properties, L.P., Reliable General Partner, Cintas Corporate Services, Inc. and Cintas Corporation No. 3 on April 14, 2022.

[2] Judge Jill Feeney presiding in the absence of the regularly assigned judicial officer, Judge Kerry Bensinger.