Judge Kerry Bensinger, Case BC721736 2023-02-08 Tentative Ruling

On September 13, 2018, plaintiff Mikhaylovic Tsirkind (“Plaintiff”) filed this action against defendants Michelle Rudnick (“Defendant”), Registered Owner (Doe 1), Rashad J. Hawkins, Registered Owner (Doe 2), Lyft, Inc., and Does 3 through 20, asserting causes of action for (1) negligence and (2) statutory liability.

The Complaint alleges the following. On or about September 15, 2016, Plaintiff Tsirkind was a lawfully restrained passenger/rider in a vehicle, when Defendant Rudnick, while exiting a parking lot onto a public roadway with his vehicle, collided with Plaintiff’s vehicle. (Compl., ¶ 2.) As a result of the impact, Plaintiff was severely injured. (Compl., ¶ 2.)

On October 13, 2022, Plaintiff filed the instant motion for leave to late expert designation.

Final Status Conference is scheduled for March 2, 2023, while a jury trial is scheduled for March 16, 2023.

“After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses to the following extent: ¶ (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, 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.)

“Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” (Code Civ. Proc., § 2034.220.)

“A demand for an exchange of information concerning expert trial witnesses shall be in writing and shall identify, below the title of the case, the party making the demand.” (Code Civ. Proc., § 2034.230, subd. (a).)

“The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings.” (Code Civ. Proc., § 2034.230, subd. (b) [emphasis added].)

“The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” (Code Civ. Proc., § 2034.230, subd. (b).)

“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).)

“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.” (Code Civ. Proc., § 2034.710, subd. (b).)

“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 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.”

The motion “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2034.710, subd. (c).)

As an initial matter, the Court finds that Plaintiff has satisfied the meet and confer requirement. (Motion, declaration of Ian Hartsfield (“Hartsfield Decl.”), ¶ 10; Exhibit 5.)

Plaintiff moves for late expert witness designation permission, arguing (among other things) the following.

There have been two expert designations by each party, the first occurring in February, and the second in September 2022. (Motion, p. 1:26-27.) “In each instance, at least one party was tardy in their service.” (Motion, pp. 1:27-2:1.) Originally Defendant was tardy, and Plaintiff did not object, but now, Plaintiff is tardy, and Defendant objects. (Motion, p. 2:1-3.)

After the first designation, Plaintiff filed an ex parte application to continue trial, which the Court granted and moved the trial date to November 9, 2022. (Motion, p. 2:9-11.) After the Court granted the trial continuance, Plaintiff served a new demand (the “Second Demand”) for expert exchange with a deadline of September 20, 2022. (Motion, p. 2:13-14.)

On September 20, 2022, Defendant served her Second Demand for expert designation, but the “designation was encrypted,” and the “password … incorrect.” (Motion, p. 2:16-19.) Therefore, the file was inaccessible by all recipients. (Motion, p. 2:18.) In addition, the Defendant failed to email the designation to Plaintiff’s counsel directly. (Motion, p. 2:21-23.)

“On October 7, 2022, [Plaintiff’s counsel] prepared and served Plaintiff’s supplemental expert designation adding accident reconstruction and biomechanics experts based on Defendant’s March 8, 2022, designation. In the service email, [Plaintiff’s counsel] also asked for an update on the status of Defendant’s [Second Demand’s] expert designation.” (Motion, p. 2:25-28 [emphasis added].)

“In response to [Plaintiff’s supplemental] designation and request for an update, Defendant stated that they had served their [Second Demand’s] expert designation on September 19, 2022. That’s when [Plaintiff’s counsel] first learned of the designation, and the recipients to that e-mail learned of their mistaken assumption.” (Motion, p. 3:1-3.)

On October 11, 2022, after much back and forth, Defendant served an accessible version of their expert exchange. (Motion, declaration of Ian Hartsfield (“Hartsfield Decl.”) ¶ 11; Exhibit 6.)

In Plaintiff’s supplemental designation, Plaintiff designated experts in the same areas of testimony as Defendant’s expert designation. (Hartsfield Decl., ¶ 12.)

Defendant argues she emailed her Second Demand expert designation to all four of the email address Plaintiff gave the Defendant. (Motion, p. 3:7-9.) In any event, Defendant adds (among other things), Plaintiff did not act promptly in serving the demand after learning of the alleged mistake, inadvertence, surprise, or excusable neglect. (Motion, p. 4:1-4.) Further, she argues, failing to calendar the exchange date for 17 days (the dates between when the exchange was due and when Plaintiff served supplemental responses), should not be considered mistake, surprise, or excusable neglect. (Motion, pp. 4:6-6:1.)

Finally, in addition to the foregoing finger pointing, Plaintiff updates the Court that on January 25, 2023, Defendant set in motion a new expert exchange date with her designation. (Reply, p. 2:9-12.) Plaintiff argues that because of this “new” expert exchange, Defendant’s designation should no longer be considered tardy. (Reply, p. 2:12.) The contours of the latest expert exchange are uncertain.

The relevant statutes were enacted to ensure “mutual and simultaneous exchange of each expert witness that any party ‘expects to offer in evidence at ... trial.’ (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 496, citing Code of Civil Procedure section 2034.210, subdivision (a) [emphasis added].) “And section 2034.260, subdivision (b)(1), requires an expert witness disclosure to list every expert ‘that the party expects to offer’ in evidence at trial.” (Ibid.)

Given the foregoing history, it is difficult to say the parties abided by the “mutual and simultaneous exchange” rule. Only a party that has made complete and timely compliance with CCP section 2034.260 may seek to exclude an opponent’s expert because of the opponent’s failure to comply with expert discovery. (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1446.) Here, Defendant’s failure to provide the correct encryption code forecloses its objection. Moreover, the requirement of a simultaneous exchange may give way in cases in which excusable neglect occurs. (Barbone v. Tuomi (2012) 210 Cal App.4^th 340, 342 [late designation of expert was not intentional strategic move to wait and see who the other party designated but was a result of error due to calendaring mistake.)

There does not appear to be any prejudice to the Defendant from Plaintiff’s “late” disclosure, especially given that the disclosure was within the time period for supplemental disclosures. None of the experts have been deposed, and Plaintiff offered to provide Defendant with scheduling preference and immediate availability of depositions of its experts.

Much of this could easily have been avoided. The Court finds Plaintiff has satisfied the requirements of Code of Civil Procedure section 2034.720. The statute allows the Court to grant leave on the condition that Plaintiff make the experts available immediately for a deposition, and on any other terms as may be just. (Code Civ. Proc. § 2034.720, subd. (d).)

Plaintiff Mikhaylovic Tsirkind is ordered to make his two experts (accident reconstruction and biomechanics expert) immediately available for depositions.

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’s 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.

Hon. Kerry Bensinger

Judge of the Superior Court