Judge: Lisa R. Jaskol, Case: 19STCV30122, Date: 2023-10-13 Tentative Ruling
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Case Number: 19STCV30122 Hearing Date: October 13, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On August 26, 2019, Plaintiff Debra Gene Escano (“Plaintiff”) filed this action against Defendants Kamnuan Thongmanee, Arporn Thongmanee, and Does 1-10 for premises liability.
On September 30, 2019, Defendants Kamnuan Thongmanee and Arporn Thongmanee (“Defendants”) filed an answer and a cross-complaint against Cross-Defendants Shawn Michael Ellis (“Ellis”) and Roes 1-100 for implied indemnity, express indemnity, contribution, and declaratory relief. On February 11, 2021, Ellis filed an answer.
On December 16, 2020, based on the parties’ stipulation, the Court continued the trial from February 22, 2021 to December 14, 2021 and ordered that discovery and motion cut-off dates would trail the new trial date.
On September 10, 2021, based on the parties’ stipulation, the Court continued the trial from December 14, 2021 to November 1, 2022 and ordered that discovery and motion cut-off dates would trail the new trial date.
On September 20, 2022, the Court granted Defendants’ ex parte application and continued the trial from November 1, 2022, to May 4, 2023. The Court ruled that discovery and law and motion remained cut off except for Ellis’s deposition.
On April 21, 2023, the Court granted Plaintiff’s ex parte application in part and continued the trial from May 4, 2023 to August 23, 2023. The Court ruled that discovery and law and motion remained cut off.
On August 9, 2023, consistent with the parties’ stipulation, the Court advanced and vacated the trial date and set a trial setting conference on October 5, 2023. The Court later continued the trial setting conference to October 19, 2023 based on the parties’ stipulation.
On August 11, 2023, Defendants filed a motion to preclude any expert testimony on behalf of Plaintiff to be heard on October 13, 2023. On October 2, 2023, Plaintiff filed an opposition. On October 4, 2023, Defendants filed a reply.
No trial date is currently scheduled.
PARTIES’ REQUESTS
Defendants request that the Court exclude Plaintiff's experts.
Plaintiff requests that the Court deny the motion.
LEGAL STANDARD
“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 extent specified by Code of Civil Procedure section 2034.210. (Code Civ. Proc., § 2034.210.) “The party demanding an exchange of information concerning expert trial witnesses shall serve the demand on all parties who have appeared in the action.” (Code Civ. Proc., § 2034.240.)
“The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. 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).)
Code of Civil Procedure section 2034.260 provides:
“(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange.
“(b) The exchange of expert witness information shall include either of the following:
“(1) A list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial.
“(2) A statement that the party does not presently intend to offer the testimony of an expert witness.
“(c) If a witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain all of the following:
“(1) A brief narrative statement of the qualifications of each expert.
“(2) A brief narrative statement of the general substance of the testimony that the expert is expected to give.
“(3) A representation that the expert has agreed to testify at the trial.
“(4) A representation that the expert will be sufficiently familiar with the pending action to submit to a meaningful oral deposition concerning the specific testimony, including an opinion and its basis, that the expert is expected to give at trial.
“(5) A statement of the expert’s hourly and daily fee for providing deposition testimony and for consulting with the retaining attorney.”
(Code Civ. Proc., § 2034.260.)
Code of Civil Procedure section 2034.300 provides:
“Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), 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:
“(a) List that witness as an expert under Section 2034.260.
“(b) Submit an expert witness declaration.
“(c) Produce reports and writings of expert witnesses under Section 2034.270.
“(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”
(Code Civ. Proc., § 2034.300.)
DISCUSSION
A. The December 3, 2020 demand for exchange of expert witness information
On December 3, 2020, Defendants served a demand for exchange of expert witness information on Plaintiff. The December 3, 2020 demand stated the “date of exchange” was January 1, 2021. It included a proof of service showing Defendants served the demand by email on Plaintiff’s counsel on December 3, 2020.
According to Plaintiff, neither side served an expert designation in response to the December 3, 2020 demand because the Court continued the trial due to the Covid-19 pandemic. Defendants do not dispute Plaintiff’s account.
B. The July 22, 2022 demand for exchange of expert witness information
On July 22, 2022, Defendants served another demand for exchange of expert witness information on Plaintiff. The July 22, 2022 demand stated the “date of exchange” was September 12, 2022. It included a proof of service showing Defendants served the demand by email on Plaintiff’s counsel on July 22, 2022.
Defendants served an expert witness designation on September 12, 2022.
Prior to August 8, 2023, Plaintiff did not identify any expert to be called at trial, did not provide an expert witness list, did not submit expert witness declarations, did not produce reports and writings of expert witnesses, and did not make any experts available for deposition.
C. Plaintiff’s August 8, 2023 service of a witness list
On August 8, 2023, Plaintiff’s counsel served a witness list on Defendants’ counsel. The witness list included the names of two experts: Rick Morales and Steve Bestin. Plaintiff had not previously designated these experts.
D. Defendants’ motion to exclude Plaintiff’s experts
Defendants argue the Court should exclude Plaintiff’s experts because Plaintiff did not designate them by the “date of exchange” listed in the July 22, 2022 demand.
In response, Plaintiff denies receiving the July 22, 2022 demand for exchange of expert witness information: “Plaintiff[ ] contend[s] that defendants did not email the demand for Exchange of Expert as indicated in the proof of service attached to defendant's request and defendants are trying to take an unfair advantage by trying to exclude Plaintiff's expert witnesses from testifying at trial.” According to Plaintiff’s counsel, he first learned about the July 22, 2022 demand for exchange of expert witness information on September 23, 2022, in a phone call with Defendants’ counsel.
Defendants counter Plaintiff’s argument by providing a copy of a July 22, 2022 email to Plaintiff’s counsel from Defendants' counsel’s office stating, “Attached please find the following: Demand for expert witness ….” The email includes an attachment labeled “Expert Demand.”
In addition, Defendants’ counsel states the following in her declaration:
“Shortly after the CCP Section 998 had been served on or about March 22, 2023, I spoke to Mr. Bowman on the phone on April 18, 2023 about the CCP Section 998 and brought up the fact that he was precluded from calling expert again due to his failure to designate experts. Mr. Bowman was going through his file while we were on the phone and told me he located the Demand for Exchange of Expert served in July 2022 and he complained Defendants had served the demand so early that he had not responded to the demand. He never challenged the demand but only said it was served long before the then current trial date.” (Declaration of Ann C. Hall ¶ 8.)
Having reviewed this and other evidence included in the parties’ papers, the Court finds that Plaintiff’s counsel received the July 22, 2022 demand for exchange of expert witness information when Defendants’ counsel served it. Plaintiff did not, however, serve an expert witness designation within the time specified in the demand.
Defendants, having timely complied with Code of Civil Procedure section 2034.260, have standing to move to exclude Plaintiff’s late-designated experts. The Court grants the motion and excludes Plaintiff’s expert witnesses Rick Morales and Steve Bestin from the trial.
CONCLUSION
The Court GRANTS the motion of Defendants Kamnuan Thongmanee and Arporn Thongmanee to exclude Plaintiff’s expert witnesses Rick Morales and Steve Bestin from the trial.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.