Judge Lee S. Arian, Case Number: 22STCV26535, Date: 2024-12-11 Tentative Ruling

Judge: Lee S. Arian, Case: 22STCV26535, Date: 2024-12-11 Tentative Ruling

Case Number: 22STCV26535 Hearing Date: December 11, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27¿

MOTION FOR TARDY DESIGNATION OF EXPERT WITNESSES

Hearing Date: 12/11/24¿¿

CASE NO./NAME: 22STCV26535 CYPRESS INSURANCE COMPANY vs TYRELL EDWARD LOUIS PATE, et al. (consolidated)

Moving Party: Defendant Los Angeles County Metropolitan Transportation Authority

Responding Party: Plaintiff Claudia Yareli Carrasco

Notice: Sufficient

Ruling: GRANT

Legal Standard

The court may permit tardy submission of expert witness lists and information if 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.¿

(CCP § 2034.720.)¿ The motion must be accompanied by a meet and confer declaration.¿ (CCP § 2034.710(c).)

Background

This motion concerns Defendant MTA’s late expert designation. The expert exchange was originally set for September 18, 2024. (Thomas Decl. ¶ 8-9.) On September 16, 2024, Plaintiff Claudia Yareli Carrasco (“Plaintiff”) requested the exchange be continued to October 2, 2024, due to an upcoming mediation. MTA agreed. (Id. ¶ 10-11.) However, after this agreement, MTA’s counsel asserts he did not calendar the new designation date. Plaintiff filed her designation of experts on October 2, 2024, but MTA did not.

On October 18, 2024, MTA realized that it failed to designate experts and served the designation on Plaintiff. (Thomas Decl. ¶ 18.) MTA designated one expert, Dr. Grogan, an orthopedic doctor who physically examined Plaintiff. Plaintiff did not respond to the email. MTA asserts that had Plaintiff responded to the email or objected, it would have made an ex parte application for leave to file the tardy designation. (Id.) MTA did not realize Plaintiff was objecting to the tardy designation until apparently November 6, 2024, when Plaintiff served a motion in limine to exclude undesignated experts. (Id. ¶ 19.)

MTA now moves the Court to allow the tardy designation of its expert witness. Plaintiff opposes and MTA replies.

Discussion

CCP § 2034.720 permits a party to submit a tardy designation of experts, provided the court considers (1) any prejudice to the opposing party, (2) whether the late designation resulted from excusable neglect, and (3) the party's diligence in addressing the late designation once discovered.

Excusable Neglect

Numerous courts have found clerical or calendaring errors to constitute excusable neglect warranting relief under Code of Civil Procedure section 473. For example, relief was granted when an associate attorney misinterpreted the lead attorney's instructions and provided incorrect information at a hearing (Bergloff v. Reynolds (1960) 181 Cal.App.2d 349, 358–359, 5 Cal.Rptr. 461) and when an attorney's secretary lost an answer that was to be filed (Alderman v. Jacobs (1954) 128 Cal.App.2d 273, 275–276, 274 P.2d 930). Additionally, as Witkin notes, “[a] number of cases deal with the realities of office practice, including the inevitable misfiling of papers or erroneous clerical entries, and usually this neglect is considered excusable.” (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 167, pp. 671–673).

On September 18, 2024, defense counsel agreed to continue the designation date to October 2, 2024. (Exhibit 8.) However, following this agreement, defense counsel failed to update a calendar slip with the new designation date. Notably, defense counsel had not previously failed to calendar a designation date in this case. Additionally, during this time, counsel's associate was sick, leading to a temporary understaffing issue.

Plaintiff argues that Defendant agreed to exchange expert information on October 2, 2024, and received Plaintiffs’ designations via email that day. Plaintiff contends any reasonable person would have recognized October 2 as the deadline and provided their designation promptly. Plaintiff further asserts that Defendant acted unreasonably by delaying 16 days to designate experts, especially after receiving Plaintiffs’ meet-and-confer letter.

The Court first notes that this is not an instance of gamesmanship or a strategic decision by Defendant regarding the late designation. Plaintiff has had the expert's report and has been aware of the expert's identity since January 2024. This is not disputed by the parties.

Second, Plaintiff’s assertion that Defendant should have acted more promptly upon receiving Plaintiff’s designation or the meet-and-confer email pertains to the issue of diligence in addressing the missed designation deadline, rather than whether the initial failure to meet the deadline resulted from mistake or excusable neglect. Plaintiff’s central argument as to excusable neglect—that any misunderstanding of the October 2, 2024, deadline is inexcusable—fails to account for the realities of legal practice. It is standard practice for attorneys to rely on calendaring systems for deadlines rather than committing them to memory. The Court finds Defendant’s explanation of a calendaring error to be credible, particularly given the absence of any prior failures to meet similar deadlines in this litigation. Plaintiff has not provided evidence to contradict the existence of such an error or to suggest that Defendant’s actions were willful or calculated.

Diligence

As to Defendant’s diligence in pursuing the late designation, there is some merit to Plaintiff’s argument that Defendant could have acted more quickly in designating its expert. However, trial is currently set for January 8, 2024, and expert discovery closes on December 24, 2024, leaving sufficient time for Plaintiff to conduct expert discovery following the late designation even now. Furthermore, Defendant has offered to waive any notice period for the expert’s deposition and make the expert available for deposition, an offer Plaintiff refused. On its face, this suggests that Plaintiff may be attempting to take advantage of the situation rather than addressing the issue substantively.

Prejudice

The Court does not find that Plaintiff has been unduly prejudiced. As stated earlier, Plaintiff does not dispute knowing the existence of Defendant’s expert, Dr. Grogan, since January 2024. Dr. Grogan conducted Plaintiff’s defense medical examination in April 2024, and Plaintiff received the expert report months before the designation deadline. There is no evidence of gamesmanship or surprise in this case. Furthermore, Defendant has repeatedly offered Plaintiff opportunities to take Dr. Grogan’s deposition, which Plaintiff has refused. The refusal to depose the expert despite repeated opportunities suggests a strategic decision by Plaintiff rather than an inability to prepare. Even now, there remains ample time for Plaintiff to conduct Defendant’s expert deposition before the expert discovery cutoff. Therefore, Plaintiff has not been unduly prejudiced.

Because the law strongly favors trial and disposition on the merits, any doubts regarding the granting of relief for excusable neglect must be resolved in favor of the party seeking relief. Accordingly, the Court grants the motion.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number. The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument. You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court. After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.