Judge: Lisa R. Jaskol, Case: 20STCV02911, Date: 2023-08-18 Tentative Ruling
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Case Number: 20STCV02911 Hearing Date: August 18, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On January 23, 2020, Plaintiffs Jeffrey Boyajian (“Boyajian”) and Zayneb El-Shibib filed this action against Defendant Shad Groves, D.C. (“Defendant”) and Does 1-20 for general negligence and loss of consortium.
On February 5, 2020, Plaintiffs filed a First Amended Complaint, adding causes of action for medical malpractice, loss of consortium based on medical malpractice, and loss of consortium based on negligence.
On July 6, 2020, the Court sustained Defendant’s demurrer to Plaintiffs’ claims for negligence and loss of consortium based on negligence with leave to amend.
On July 14, 2020, Plaintiffs file a Second Amended Complaint asserting claims for general negligence, loss of consortium, “negligence – medical malpractice,” “loss of consortium – medical malpractice,” “failure to obtain informed consent,” and “medical battery.”
On November 18, 2020, the Court overruled Defendant’s demurrer. On November 25, 2020, Defendant filed an answer.
On April 13, 2023, the Court continued the trial to July 11, 2023 and ordered that discovery would remain cut off except for expert witness depositions.
On June 20, 2023, Boyajian filed a motion to augment or amend his expert witness designation to be heard on August 18, 2023. On August 7, 2023, Defendant filed an opposition. On August 11, 2023, Boyajian filed a reply.
On June 21, 2023, the Court continued the trial to November 22, 2023 and ordered that discovery and law and motion cut-off dates would not be continued, with the exception of expert witness depositions.
Trial is currently set for November 22, 2023.
PARTIES’ REQUESTS
Boyajian requests that the Court grant leave to augment or amend his expert witness list to add a lifecare planner.
Defendant requests that the Court deny the motion.
LEGAL STANDARD
Code of Civil Procedure section 2034.610 provides:
“(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following:
“(1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.
“(2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.
“(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”
(Code Civ. Proc., § 2034.610.)
Code of Civil Procedure section 2034.620 provides:
“The court shall grant leave to augment or amend an expert witness list or declaration 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 that 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, or to offer the different or additional testimony of 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 or to offer the different or additional testimony.
“(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.
“(d) Leave to augment or amend 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.”
(Code Civ. Proc., § 2034.620.)
DISCUSSION
Boyajian requests leave to amend the expert witness list to add a lifecare planner. Boyajian argues Defendant will not be prejudiced by the addition of a lifecare planner because the parties have already agreed to continue the trial and Defendant will have time to depose the new expert. Boyajian asserts his failure to designate a lifecare planner previously was due to “inadvertency.” He states that a neurosurgeon only recently brought the need for a lifecare planner to his attention.
In opposition, Defendant argues (1) Boyajian did not provide a meet and confer declaration (Code Civ. Proc., § 2034.610, subd. (c)), (2) Boyajian has not identified the lifecare planner, (3) Boyajian did not act with reasonable diligence to designate a lifecare planner, (4) if Boyajian’s initial failure to designate a lifecare planner was the result of inadvertence, Boyajian has not promptly served a copy of the proposed expert witness information concerning the expert on the other parties (Code Civ. Proc., § 2034.620, subd. (c)(2)(B)).
In reply, Boyajian asserts he acted with reasonable diligence. He points out that the email exchange attached to the opposition and reply shows that counsel met and conferred about the addition of a lifecare planner.
The Court concludes Boyajian has complied with most but not all the statutory requirements for augmenting or amending an expert witness designation. (See Code Civ. Proc., § 2034.620 ["The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied" (emphasis added)].) The emails attached to the opposition and reply show that Boyajian substantially complied with the meet and confer requirement. As the trial is now scheduled for November 22, 2023, Boyajian filed his motion “at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit.” (Code Civ. Proc., § 2034.610, subd. (b).)
Defendant has not asserted that he relied on Boyajian’s previous list of expert witnesses. (See Code Civ. Proc., § 2034.620, subd. (a).) Granting this motion would not prejudice Defendant in maintaining his defense on the merits. (See Code Civ. Proc., § 2034.620, subd. (b).)
Boyajian failed to list a lifecare planner as an expert witness due to mistake, inadvertence, surprise, or excusable neglect. (See Code Civ. Proc., § 2034.620, subd. (c)(2).) Boyajian sought leave to augment or amend promptly after deciding to call the expert witness. (See Code Civ. Proc., § 2034.620, subd. (c)(2)(A).)
However, after filing his motion seeking leave to augment or amend, Boyajian did not “[p]romptly thereafter serve[ ] a copy of the proposed expert witness information concerning the expert . . . on all other parties who have appeared in the action.” (Code Civ. Proc., § 2034.620, subd. (c)(2)(B).) When Defendant filed his opposition, he still did not know the identity of Boyajian’s proposed lifecare planning expert.
The Court therefore denies the motion.
CONCLUSION
The Court DENIES Plaintiff Jeffrey Boyajian’s motion to augment or amend his expert witness designation.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.