Judge: Lee W. Tsao, Case: 20NWCV00181, Date: 2023-03-15 Tentative Ruling

Case Number: 20NWCV00181    Hearing Date: March 15, 2023    Dept: C

NORWICH v. REDIGER INVESTMENT MORTGAGE FUND

CASE NO.:  20NWCV00181

HEARING:  03/15/23

#3

TENTATIVE ORDER

     I.        Defendant/Cross-Complainant REDIGER INVESTMENT MORTGAGE FUND’s Motion to Exclude Expert Testimony of Deputy Luisa Basurta is OFF-CALENDAR pursuant to the Notice filed on March 8, 2023.

    II.        Defendant/Cross-Complainant REDIGER INVESTMENT MORTGAGE FUND’s  Motion to Strike Plaintiff/Cross-Defendant PETER T. NORWICH’s Supplemental Expert Designation is GRANTED.

Moving Party to give Notice.  

Defendant/Cross-Complainant REDIGER INVESTMENT MORTGAGE FUND (“Rediger”) moves to exclude Plaintiff/Cross-Defendant PETER T. NORWICH’s (“Norwich”) Supplemental Designation of Non-Retained Expert Witnesses at trial: (1) Jane Mak; (2) Sergeant Jaqueline Luna; (3) Deputy C. Derry; (4) E. Sanchez; and (5) Sergeant S. Reyes (collectively “Supplemental Experts”).

“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.” (CCP §2034.210. (a).)  

“Within 20 days after the exchange…any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.” (CCP §2034.280.)

Rediger’s list of expert witnesses include James B. Hibbert – an expert witness in the areas of hard money lending, real estate, real estate brokerage, banking and finance; and Renee Howdeshell—an expert witness in financial analysis and calculations involving disputes. (See Luczon Decl., ¶ 2, Ex B.) Defendant/Cross-Defendant KOHEN FINANCIAL GROUP and ABRAHAM KOHEN’s (collectively (“Kohen”) list of expert witnesses include: Oscar Dominguez—expected to testify with respect to the standard of care required of a broker and lender in connection with a real estate hard money loan; and Joseph Ely—expected to testify with respect to the issue of standard of care required of a broker and lender in connection with a hard money loan. (Id. ¶7, Ex. G.)

Rediger first argues that Norwich’s Supplemental Experts should be excluded because the Norwich’s Supplemental Expert List fails to comply with CCP §2034.280. The Court agrees. Norwich’s 5 Supplemental Experts are all members of law enforcement. According to Counsel for Norwich, “[t]he five non-retained experts identified in [the] supplemental designation are investigating officers with the Los Angeles County Sheriff’s Department who interviewed various participants in the identity theft as to the manner in which a fraudulent LLC was created, funded and used to divert funds wrongfully obtained through a loan against Plaintiff’s property without Plaintiff’s knowledge, the amount of funds diverted, the identity of the persons involved in such conduct, and whether or not persons identified in Plaintiff’s financial records participated in any fraudulent or improper conduct. Each is expected to provide testimony regarding these events relating to Peter Norwich.” (Id, ¶6,  Ex. F.) The 5 Supplemental Experts are ill-suited to rebut or respond to Rediger and Kohen’s experts’ testimonies. Because Rediger has not specifically designated any experts to provide law enforcement expert testimony, it is improper for Norwich to designate the Supplemental Experts as rebuttal experts.

In Opposition, Norwich argues that he did not discover the identities of the Supplemental Experts until or about January 5, 2023—around the same time that the exchange of expert witnesses took place. Norwich also indicates that he filed a Motion to Augment or Amend Expert Witness Designation on February 2, 2023, wherein Norwich seeks to augment the expert designation as to each of the 5 Supplemental Experts. The Motion to Augment is currently set for hearing on August 8, 2023—approximately three months after trial. As of March 13, 2023, no request/ex parte application to advance the hearing date on Norwich’s Motion for Leave to Augment Expert Witness Designation has been filed or lodged with the Court.

Moreover, Norwich’s Supplemental Experts are non-retained experts. CCP §2034.280 does not authorize the supplemental designation of non-retained experts. (See e.g. CCP §2034.260(b)(1) and (c).) However, the parties are not foreclosed from calling the Supplemental Experts as percipient witnesses at trial.

The Motion is GRANTED.

The Court notes that this ruling does not intend to affect or pre-determine any potential future ruling on Norwich’s Motion to Augment or Amend Expert Witness Designation, which is not property before the Court at this time.

Norwich’s request to continue trial (raised in Opposition to the instant Motion) is DENIED without prejudice. This relief is properly sought via ex parte or regularly noticed motion in Dept. SE-F.