Judge: Lisa R. Jaskol, Case: 20STCV43776, Date: 2023-10-12 Tentative Ruling
Case Number: 20STCV43776 Hearing Date: January 31, 2024 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On November 13, 2020, Plaintiffs Christopher Thomas (“Plaintiff”) and Azariaah Thomas (“Azariaah Thomas”) filed this action against Defendants Bashie Brianna Turner (“Defendant”) and Does 1-50 for negligence.
On March 16, 2021, Defendant filed an answer.
On February 7, 2023, the Court continued the February 14, 2023 trial to June 22, 2023. The Court ruled that discovery would remain cut off.
On June 1, 2023, the Court continued the trial to November 30, 2023 and ruled that discovery would remain cut off except for Plaintiff's pending motion to strike Defendant’s expert designation.
On October 12, 2023, the Court granted Plaintiff’s motion to strike Defendant’s expert designation and barred Defendant’s experts from testifying at trial. The Court found that Defendant’s unreasonable failure to serve a timely expert witness designation prevented Plaintiff from deposing Defendant’s experts before the discovery cut-off. In addition, the Court found that Defendant engaged in “gamesmanship” by attempting to mislead Plaintiff about when Defendant served the expert witness designation.
On October 31, 2023, Defendant filed a motion for leave to serve a late expert witness designation to be heard on January 31, 2024. On January 18, 2024, Plaintiff filed an opposition. On January 24, 2024, Defendant filed a reply.
On November 11, 2023, the Court denied Defendant’s ex parte application to exclude Plaintiff’s expert designation, noting that Defendant did not move to strike Plaintiff's expert designation until approximately 10 months after Plaintiff served the expert designation.
On November 16, 2023, the Court dismissed Azariah Thomas with prejudice at Plaintiffs’ request.
On November 20, 2023, the Court granted Defendant’s ex parte application to continue trial and continued the trial to January 22, 2024. The Court did not continue or reopen discovery.
On January 2, 2024, the Court denied Defendant’s motion to strike Plaintiff’s expert witness designation.
On January 22, 2024, the Court approved the parties’ agreement to continue the trial from January 22, 2024 to February 22, 2024. The parties agreed that discovery would remain closed.
Trial is currently scheduled for February 22, 2024.
PARTIES’ REQUESTS
Defendant requests that the Court permit Defendant to submit a late expert witness designation.
Plaintiff requests that the Court deny the motion.
“A party who failed to exchange under [Code of Civil Procedure section 2034.260] on time (normally 50 days before trial) may seek leave to submit the required material on a later date.” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:1732, p. 8J-39 (Cal. Practice Guide), citing Code Civ. Proc., § 2034.710.) “Absent ‘exceptional circumstances,’ the motion for permission to file a tardy list must be made early enough to permit deposing the experts involved before the 15-day cut-off on expert witness depositions.” (Id., ¶ 8:1734, p. 8J-39, citing Code Civ. Proc., §§ 2034.710, subd. (b), 2024.030.)
Code of Civil Procedure section 2034.720 authorizes the Court to grant leave to submit tardy expert witness information “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 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.
“(c) The court has determined that the moving party did all of the following:
“(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.”
(Code Civ. Proc., § 2034.720; see Cal. Practice Guide, supra, ¶¶ 8:1737-8:1738.1, pp. 8J-40 to 8J-41.)
DISCUSSION
Defendant cannot establish that her failure to submit timely expert witness information was “the result of mistake, inadvertence,
surprise, or excusable neglect,” that she “[s]ought leave to submit the
information promptly after learning of the mistake, inadvertence, surprise, or
excusable neglect,” or that she “[p]romptly 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.” (Code Civ. Proc., § 2034.720, subd. (c).)
Defendant’s attempt to satisfy these
requirements appears to rest on the following asserted scenario: Defendant’s counsel reasonably believed that
her office timely served an expert designation on December 26, 2022. (Tseng
Dec. ¶ 4.) Defendant’s counsel did not “learn
of the mistake, inadvertence, surprise, or excusable neglect” (Code Civ. Proc., § 2034.720, subd. (c)(2)) – i.e., the
failure to serve the designation – until the Court issued its ruling on October
12, 2023, finding that Defendant’s designation was untimely. Defendant nonetheless re-served the expert designation
on April 6, 2023. (See Code Civ. Proc.,
§ 2034.720, subd. (c)(3).)
Defendant’s scenario is not convincing. On December 29, 2022, Plaintiff’s counsel informed Defendant’s counsel that Plaintiff had not yet received a copy of Defendant’s expert designation. Defendant’s counsel does not appear to have investigated Plaintiff’s counsel’s assertion, which Plaintiff’s counsel repeated on April 6, 2023.
When Defendant’s counsel, in response to Plaintiff’s counsel’s request, sent Plaintiff’s counsel a copy of the expert designation on April 6, 2023, Plaintiff’s counsel examined the metadata and concluded that the document was created on January 23, 2023. On April 6, 2023, and April 11, 2023, Plaintiff’s counsel requested a copy of the December 26, 2022 email in which, according to Defendant’s counsel, Defendant's counsel had served the designation.
Defendant’s counsel has never provided this email. In the present motion, Defendant’s counsel has submitted a declaration stating that the email showing service of the expert designation on December 26, 2022 is “attached as Exhibit ‘B.’ ” (Tseng Dec. ¶ 4.) Exhibit B contains no email.
The Court denies the motion.
CONCLUSION
The Court DENIES Defendant Bashie Brianna Turner’s motion for leave to file a late expert 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.