Judge: Laura A. Seigle, Case: 22STCV11362, Date: 2023-09-11 Tentative Ruling

Case Number: 22STCV11362    Hearing Date: September 21, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION TO REOPEN DISCOVERY

            The court granted Plaintiffs’ motion for a trial preference, setting the trial for September 25, 2023.  Pursuant to the June 9, 2023 trial setting order, the parties were to exchange expert designations, reports, and writings by August 6, 2023.  Parties were to “promptly” offer their trial experts for deposition at least five days before the offered deposition date, and expert reports were due three days before the deposition.  All expert discovery was to be completed by September 8, 2023.

            Plaintiffs state they retained Robert Johnson as an expert on June 16, 2023, and designated him as an expert on August 4, 2023.  (Seitz Decl., ¶ 5, Ex. 4.)  His office said he was available for a deposition on September 6, 2023.  (Seitz Decl., ¶ 6.)  Apparently, Plaintiffs never offered that deposition date to Defendants.  Instead, on August 31, 2023, Plaintiffs “learned that Mr. Johnson would not be able to provide testimony on September 6, 2023 and his next availability was not until the middle of October.”  (Seitz Decl., ¶ 6.)

            On September 7, 2023, Defendant Honeywell International and other defendants withdrew their offer of rebuttal expert Laura Dolan for her deposition that had been scheduled for September 8, 2023.  (Turner Decl., Ex. A.)

            On September 8, 2023, Plaintiffs notified Defendants for the first time that Johnson was not available and that they were substituting David Fractor.  (Seitz Decl., ¶ 8.)

            On September 15, 2023, Plaintiffs filed an ex parte application to allow Fractor’s deposition.

            Code of Civil Procedure section 2024.050, subdivision (a) allows a court to grant leave to complete discovery closer to the initial trial date.  The court must consider the necessity for the discovery, the diligence of the party seeking the discovery and the reasons that the discovery was not completed, the likelihood that permitting discovery will prevent the case from going to trial or result in prejudice to any other party, and the length of time between any date previously set and the date presently set for the trial.  (Code Civ. Proc., § 2024.050, subd. (b).) 

            Under Code of Civil Procedure section 2034.610, the court may allow a party to augment the party’s expert witness list and declaration by adding the name of an expert witness the party has subsequently retained if the motion is made “at a sufficient time in advance of the time limit for the completion of discovery.”  (Code Civ. Proc., § 2034.610, subd. (a), (b).)  Otherwise, the court may permit such a motion to be made at a later time only “[u]nder exceptional circumstances.”  (Ibid.)  The court shall grant leave to augment “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 the 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 . . .  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 . . . . (B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert . . . .”  (Code Civ. Proc., § 2034.620.) 

            Plaintiffs must satisfy both section 2024.050 and sections 2034.610/620 because Plaintiffs are seeking not only to set an expert deposition after the discovery cutoff, but also to augment their expert witness list with a new expert. 

            Regarding the factors in section 2024.050, Johnson and Fractor are economic damages experts, and so the deposition is relevant to Plaintiffs’ damages case, although Plaintiffs can likely prove some economic damages (such as medical expenses and lost income) without the expert testimony. 

Plaintiffs do not explain why Johnson is not available for a deposition.  Plaintiffs retained him in June 2023, and designated him on August 4, 2023.  As part of the designation, Plaintiffs’ counsel stated under oath that Johnson had “agreed to testify, if necessary, at trial and will be sufficiently familiar with the case to provide a meaningful oral deposition.”  (Seitz Decl., Ex. 4 at p. 72.)  Having been retained and designated, Johnson was obligated to appear for a deposition before the discovery cutoff date.  There is no evidence why he supposedly is unable to appear until October 2023.

            Plaintiffs did not show diligence in handling this matter once Johnson informed them that he could not be deposed before October 2023.  Plaintiffs state they learned about his unavailability on August 31, 2023, but they did not immediately inform Defendants.  The last day to offer an expert for a deposition was September 5, 2023 (five days before the September 8 expert discovery cutoff date was Sunday September 3, and September 4 was a holiday).  Plaintiffs did not offer an economist for deposition by September 5, 2023.  So on September 7, 2023, Defendants withdrew their rebuttal economist.  Only after that, on September 8, 2023, did Plaintiffs notify Defendants that they still planned to have an economist testify at trial, only a different one.

            Defendants argue they are prejudiced because they have already let their rebuttal expert go and they now have no rebuttal expert.  This prejudice could have been avoided if Plaintiffs had immediately informed Defendant that Johnson was not available and they were searching for a new economist.

            Trial is on September 25, 2023.  Because this is a preference case, the trial date cannot be continued any extensive period of time to allow Fractor to prepare a report and be deposed, and for Defendants to either find a new rebuttal economist or to reschedule Dolan for a deposition.

            Regarding the factors in sections 2034.610 and 2034.620, Plaintiffs did not bring their ex parte application “at a sufficient time in advance of the time limit for the completion of discovery.”  They waited until a week after the expert discovery cutoff date.  And they did not show exceptional circumstances for making a late motion.  In particular, they did not explain why Johnson was unable to be deposed in this case.

            Defendants relied on Plaintiffs original list of expert witnesses by retaining a rebuttal economist, and then let her go when they determined Plaintiffs were not offering an economist for a deposition before the cutoff date.  Defendants will be prejudiced if at this late date, just a few days before trial, Plaintiffs are allowed to substitute in a new expert, in particular if Defendants are not able to re-retain their rebuttal expert.  Plaintiffs did not show diligence in handling this matter, as explained above.  Nor did they show their failure to designate Fractor instead of Johnson, or their designation of Johnson in the first place, was the result of mistake, inadvertence, surprise, or excusable neglect.

            In sum, Plaintiffs did not satisfy the factors in sections 2024.050, 2034.610, and 2034.620.  They did not present evidence of the reasons why Johnson’s deposition cannot go forward.  And they did not show diligence by waiting until September 8, 2023, and after receiving notice that Defendants had withdrawn their rebuttal economist, to notify Defendants of Plaintiffs’ plan to have a different economist testify at trial.  Defendants will be prejudiced by this very late substitution. 

            The motion to have Factor testify closer to the trial date is DENIED.

            The moving party is to give notice.

[TENTATIVE] ORDER RE HONEYWELL’S GENERAL OBJECTIONS TO ROGERS FORMER TESTIMONY

            The July 8, 2022 Case Management Order sets out a procedure and timeline for handling former deposition testimony from prior lawsuits.  Part of that procedure requires parties to exchange lists of former testimony by a particular date.  Thereafter opposing parties are to file and serve general objections to specific transcripts identified on the lists of former testimony.  While Defendant Honeywell International Inc. filed general objections to a number of transcripts on Plaintiffs’ list of former testimony, it did not timely file objections to the former testimony of Eugene Rogers. 

            On September 15, 2023, Honeywell filed an ex parte application to allow it to file its general objections to the Rogers transcript.  The court set the ex parte application for a hearing and to allow Plaintiffs to file an opposition, which Plaintiffs did.

            Honeywell states that it timely served the general objections and attempted to file them, but the filing was rejected because it contained the wrong case number.  Honeywell says this occurred because it was preparing and filing dozens of general objections in two cases and mixed up the case numbers.  (Campbell Decl., ¶ 2; Cranford Decl., ¶¶ 2, 3.)  Honeywell did not notice the mistake until September 13, 20023 when it received the court’s September 11, 2023 minute order stating that Honeywell had not filed general objections to Rogers.  Honeywell seeks relief under Code of Civil Procedure section 473, subdivision (b) for its counsel’s excusable neglect.

            Plaintiffs argue there is no excusable neglect for failure to timely object.

            Here Honeywell timely served the general objections to the Rogers transcripts, and Plaintiffs timely filed and served a response to the general objection.  Therefore this is not a situation where the moving party completely failed to object or where the other side is prejudiced by a late or after-the-fact objection.  Honeywell established a clerical mistake in attempting to file the general objections. 

            Discretionary relief under section 473, subdivision (b) is available if a reasonably prudent person under the same or similar circumstances might have made the same error, in other words, it is a “mistake[] anyone could have made.”  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 682.)  Inserting the wrong case number on a document while preparing dozens of objections in two different cases is a clerical mistake anyone could have made and is the type of excusable neglect covered by section 473, subdivision (b).

            Therefore, the court grants Honeywell’s request for relief and will consider its general objections to Plaintiffs’ designation of Rogers’ former testimony.  Honeywell filed a copy of its general objections to Rogers with its ex parte application.  (Selman Decl., Ex. A.) 

            Honeywell objects that Plaintiffs’ list of former designated twelve transcripts from Eugene Rogers’ former testimony.  In total, Plaintiffs listed 233 transcripts they intend to use against Honeywell.  This is unreasonable, cumulative and oppressive.  Plaintiffs did not show good cause for identifying twelve transcripts from one witness, let alone 233 transcripts to be used against Honeywell.  Plaintiffs’ strategy appears to be to list every possible transcript ever used in an asbestos case against Defendant, thereby greatly increasing the work of Defendant and the court in handling objections.  This is contrary to the requirements of the July 8, 2022 CMO, which states that the designating party is to list those transcripts the party intends to use at trial.  (July 8, 2022 CMO at pp. 14-15.)  Plaintiffs could not reasonably expect to use twelve transcripts from one witness at the trial in this case (let alone 233 transcripts).

            At this point, it appears that Plaintiffs actually intend to use only one Rogers transcript – the January 12, 1993 transcript.  Defendant objects the transcript is hearsay and not admissible under Berroteran v. Superior Court (2022) 12 Cal.5th 867.  Specifically, the parties did not agree the deposition transcript would serve as trial testimony, no party at the prior deposition had a similar motive or interest in examining the witness as Defendant does here, the witness was either employed by or a consultant for Defendant’s predecessors at the time of the deposition, and Defendant did not examine the witness.

            In their original response to Honeywell’s served (but not filed) general objections, Plaintiffs had a short boilerplate statement that did not address the Berroteran factors.  In opposition to Honeywell’s ex parte application, Plaintiffs presented a much more comprehensive response to the objections, including by attaching a copy of the January 12, 1993 transcript, which the court considered.

In its opposition, Plaintiffs contend the witness was represented by Defendant’s predecessor’s attorney and testified about the predecessor’s files, asbestos in brake parts, hazards of asbestos, warnings, and testing of products.  Plaintiffs state the predecessor examined the witness.  Plaintiffs contend the witness could not be compelled to testify at the trial. 

            The deposition transcript does not indicate that the parties agreed the deposition would serve as trial testimony, and there is no evidence the parties subsequently agreed to use the deposition transcript at trial in that earlier case or in other cases.  While Plaintiffs contend Rogers was not an employee and so could not be compelled to testify at trial, he testified he had a consulting agreement with Defendant’s predecessor to help them defend against asbestos litigation claims.  (Ex. 1 at p. 10.)  That suggests he was available to be called by Defendant’s predecessor to testify at trial.

            The consulting agreement also shows the witness was aligned with Defendant’s predecessor and was assisting it with the litigation.  That fact suggests Defendant’s predecessor did not have an interest in examining its own consultant at the deposition.

The predecessor’s counsel asked 11 pages of questions out of a 173-page transcript.  Those questions were about searching for documents, aircraft and Ford trucks for which the predecessor made brakes linings, and warnings on brake boxes.  (Ex. 1 at pp. 162-173.)  Except for the handful of questions about warnings, the other topics are not relevant to this case.  The questions asked by Defendant’s predecessor were clarifying questions, and not the type of open-ended questions a party presenting a witness at trial would ask.

            Some of the designated testimony may have some similarity to issues in this case, such as questions about the predecessor’s involvement in industry groups, and when it first sold non-asbestos brake products, but most of the deposition was about aircraft brakes, brakes for Ford trucks, and events in the 1940s through 1960s, long before Plaintiff’s exposure here in the 1980s.

            Plaintiffs did not establish the Berroteran factors showing the parties intended the deposition to serve as trial testimony or that Defendant’s predecessor had a motive or interest in examining the witness at the deposition similar to Defendant’s interest here.  Thus, they did not overcome the hearsay objection.

            Plaintiffs also argue the transcript is admissible as an authorized admission under Evidence Code section 1222 because Rogers had a consulting agreement with the predecessor.  Under section 1222, a statement is not inadmissible hearsay if it was “made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement” and there is “evidence sufficient to sustain a finding of such authority.”  The Law Revision Commission Comments state, “The authority of the declarant to make the statement need not be express; it may be implied.  It is to be determined in each case under the substantive law of agency.”  The authorized admission exception applies when an agent makes a statement “within the scope of his authority.”  (Bowser v. Ford Motor Co.(2022) 78 Cal.App.5th 587, 612.) 

Plaintiffs did not submit evidence establishing the scope of the witness’ authority.  Simply because the witness was a consultant does not necessarily mean Defendant’s predecessor authorized his deposition testimony.  Nor did Plaintiffs show the scope of any such authorization or that the predecessor authorized the witness to make statements to be used in unknown future lawsuits, in other words, that the witness’ authority to speak for the predecessor extended beyond the original deposition and original lawsuit.  Plaintiffs did not establish that the deposition was an authorized admission of Defendant.

            The ex parte application for Defendant’s late-filed objections to the Rogers transcript is GRANTED.  The court considered Defendant’s objections and Plaintiffs responses and SUSTAINS the objections.

            The moving party is to give notice.