Judge Lee S. Arian, Case Number: 2OSTCV23490, Date: 2023-11-22 Tentative Ruling

This is an action arising from Plaintiff Jonathan Hart (“Plaintiff”) being struck by a bus. On June 22, 2020, Plaintiff filed a complaint against Defendants City of Santa Monica, Big Blue Bus, and Does 1 through 100, alleging a single cause of action for negligence.

On October 26, 2023, Defendant City of Santa Monica (“Moving Defendant”) filed and served a motion (the “Motion”) to strike Plaintiff’s Supplemental Disclosure of Expert Witness Information (the “Supplemental Expert Designation”), which was served on Friday, October 20, 2023. The Motion is made pursuant to Code Civ. Proc. §§ 435 and 436, and Fairfax v. Lords (2006) 138 Cal.App.4th 1019.

Moving Defendant contends the Supplemental Expert Designation does not comply with Code Civ. Proc. § 2034.280.

On November 13, 2023, Plaintiff filed and served his opposition to the Motion. On November 14, 2023, Moving Defendant filed and served its reply brief.

Although filed and served late, the Court exercises its discretion and will consider Plaintiff’s late-filed opposition pursuant to California Rules of Court, Rule 3.1300(d).

The meet and confer requirement has been met pursuant to Code Civ. Proc. § 435.5. (Baggs Decl., ¶ 13 and Exhibit H.)

“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof.” (Code Civ. Proc. § 435(b)(1).) A court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436(a).) A court may “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc. § 436(b).) A pleading is defined as a demurrer, answer, complaint, or cross-complaint. (Code Civ. Proc. § 435(a)(2).)

Plaintiff contends that the Motion is improper because the proper vehicle for precluding an improperly designated expert’s testimony is a motion in limine or an objection to the expert’s testimony at trial.

All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of the exchange specified in the demand. (Code Civ. Proc. § 2034.260(a).) Under Code Civ. Proc. § 2034.300, on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

The Supplemental Expert Designation at issue is attached to the declaration of Moving Defendant’s counsel, Robert A. Baggs (“Baggs”), as Exhibit G in support of the Motion. (Baggs Decl., ¶ 12 and Exhibit G.) The Supplemental Expert Designation indicates that Dr. Jonathan Zelken is a non-retained expert. (Id.)

The Court finds that the Supplemental Expert Designation at issue was never filed as a pleading with this Court. The Court fails to see how the Court can strike a document that was never filed as an operative pleading in this action. The Supplemental Expert Designation cannot be considered a pleading under Code Civ. Proc. § 435(a)(2) as it is neither a demurrer, answer, complaint, nor cross-complaint.

Additionally, Moving Defendant’s reliance on Fairfax v. Lords (2006) 138 Cal.App.4th 1019 is inapposite. Fairfax involved a motion in limine to strike a designation of experts and not a motion to strike pursuant to Code Civ. Proc. §§ 435 and 436. (Fairfax v. Lords, supra, 138 Cal.App.4th 1019, 1024.) In fact, Fairfax did not even reference Code of Civil Procedure sections 435 and 436, which are the statutes upon which Moving Defendant brings the Motion. (Ibid.) The Fairfax court even opined that a motion to strike an expert designation was not the proper mechanism and that such issue should be raised by a motion in limine. (Id., p. 1023 [explaining that the trial court denied appellant’s ex parte motion to strike respondent’s second expert designation “and advised [appellant] that the issue of disqualification could be raised by motion in limine”].) The issue in Fairfax was whether the trial court’s denial of appellant’s motion in limine to strike an expert designation was proper. (Id., p. 1025.) Thus, Fairfax itself supports the position that the Motion is procedurally improper.

If Moving Defendant wishes to exclude the testimony of the expert identified in the Supplemental Expert Designation, Moving Defendant may file a motion in limine seeking such relief.

Due to the Court finding that the Motion is procedurally improper and is not a proper mechanism to strike the Supplemental Expert Designation, the Court need not address the other arguments raised in support of the Motion.

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.

Hon. Lee S. Arian

Judge of the Superior Court