Judge: Lisa R. Jaskol, Case: 21STCV00728, Date: 2024-05-30 Tentative Ruling
Case Number: 21STCV00728 Hearing Date: May 30, 2024 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On January 7, 2021, Plaintiff Dehkora Tupuola (“Plaintiff”) filed this action against Defendants Haydee Veronica Hernandez Loyo (“Hernandez Loyo”), Jose L. Davila Antonio (“Davila Antonio”), Nazario Lopez Gonzalez (“Gonzalez”), and Does 1-100 for motor vehicle tort and general negligence.
On December 15, 2022, Defendants Hernandez Loyo, Davila Antonio, and Gonzalez (“Defendants”) filed an answer.
On March 21, 2024, Defendants filed a motion for leave to submit tardy expert witness information, to be heard on May 30, 2024. On May 16, 2024, Plaintiff filed an opposition. On May 22, 2024, Plaintiff filed a notice of errata.
Trial is currently scheduled for June 26, 2024.
PARTIES’ REQUESTS
Defendants ask the Court for leave to submit tardy expert witness information.
Plaintiff asks the Court to deny the motion and to impose monetary sanctions on Plaintiff.
Code of Civil Procedure section 2034.710 provides:
“(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.
“(b) A motion under subdivision (a) shall be made 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. Under exceptional circumstances, the court may permit the motion to be made at a later time.
“(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”
(Code Civ. Proc., § 2034.710.)
Code of Civil Procedure section 2034.720 provides:
“The court shall 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.)
DISCUSSION
On February 1, 2024, Plaintiff served a demand for exchange of expert witness information on Defendants. The demand set February 21, 2024 as the date of exchange. On February 21, 2024, Plaintiff served expert witness information on Defendants. Defendants did not timely serve their expert witness information on Plaintiff.
Defendants proffer two inconsistent reasons for their failure to make a timely exchange of expert witness information.
First, Defendants assert: “As set forth in the Declaration of M. Reza Lajevardi, Defendant’s failure to make a timely exchange was the result of counsel’s mistake and excusable neglect, in that this matter was recently reassigned to Defense Counsel, M. Reza Lajevardi, Esq., on May 18, 2023 and during the process of transferring the information from the previous attorney’s system to my system, the expert designation date was not accurately recorded in the calendar.” (Motion p. 3.)
Second, Defendants assert: “On the very day the designation was due, my paralegal faced an urgent and severe personal emergency that necessitated her immediate attention, culminating in the need to file for a restraining order. This unforeseen event compelled her absence from the office, preventing her from executing her duties, one of which was to send out the expert designation that had already been prepared and was scheduled for dispatch. Therefore, this can be deemed as excusable neglect since Defense Counsel missed the deadline due to a personal emergency that arose that day.” (Motion p. 5.)
According to Defendants, they discovered their failure to make a timely exchange of expert witness information on February 22, 2024. The same day, Defendants served a copy of their proposed expert witness list, which designated Nickul Jain, M.D. as Defendants’ expert witness. On February 26, 2024, Defendants’ counsel asked whether Plaintiff would allow Defendants to make an untimely designation of expert witnesses but Plaintiff’s counsel did not respond to the request.
Defendants believe that (1) Plaintiff has not relied heavily on the absence of Defendants’ expert witness information and (2) Plaintiff will not be prejudiced in maintaining her action on the merits.
Plaintiff opposes the motion, arguing that on March 21, 2024, Plaintiff noticed Nickul Jain, M.D.’s deposition for April 3, 2024. Plaintiff’s counsel offered to waive the tardy designation and proceed with the deposition of Defendants’ expert. (Opposition p. 9.) Although Defendants promise to make their experts available for deposition at Plaintiff’s earliest convenience (Motion p. 5), Defendants did not respond to the deposition notice. (Opposition p. 8.)
Plaintiff also argues that Defendants’ motion is moot because, on April 3, 2024, the Court granted Defendants’ ex parte application to continue the trial and related dates. The Court continued the trial from April 11, 2024 to June 26, 2024 and ruled that discovery and related dates would be based on the new trial date. Subsequently, on April 17, 2024, Plaintiff served a demand for designation of expert witness information on Defendants. The demand set May 7, 2024 as the date of exchange. On May 7, 2024, Plaintiff served her expert designation. Defendants, however, failed to serve an expert designation.
The Court denies the motion because it is moot and because it does not satisfy the requirements of Code of Civil Procedure section 2034.720, subdivision (c).
The Court denies Plaintiff’s request for sanctions. Code of Civil Procedure section 2034.630, which Plaintiff cites as authority, applies to motions “to augment or amend expert witness information . . . .” (Code Civ. Proc., § 2034.630.) The statute does not apply here.
CONCLUSION
The Court DENIES the motion of Defendants Haydee Veronica Hernandez Loyo, Jose L. Davila Antonio, and Nazario Lopez Gonzalez Defendant for leave to submit tardy expert witness information.
The Court DENIES Plaintiff Dehkora Tupuola’s request for sanctions.
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.