Judge: Lisa R. Jaskol, Case: 21STCV14535, Date: 2023-12-26 Tentative Ruling
Case Number: 21STCV14535 Hearing Date: December 26, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On April 16, 2021, Plaintiff Andrew Parisi, by and through his conservators Adam Parisi and Christine Parisi (“Plaintiff”), filed a complaint against Defendants Farhad Kamani (“Defendant”) and Does 1 to 50 for negligence.
On June 14, 2021, Defendant filed an answer.
On June 5, 2023, the parties announced they were ready for trial. No courtroom was available and the Court continued the trial to June 12, 2023.
On June 12, 2023, the parties announced they were not ready for trial. Based on the parties’ stipulation, the Court continued the trial to October 3, 2023. The Court noted that discovery remained closed.
On July 10, 2023, the Court approved the parties’ stipulation which provided, among other things, that “Defendant is permitted to conduct fact discovery related to damages suffered by Adam Parisi in his individual capacity as part of his wrongful death case.”
On September 28, 2023, Defendant filed a motion for leave to augment expert designation. The motion was set for hearing on January 17, 2024. On October 26, 2023, Plaintiff filed an opposition. On November 1, 2023, Defendant filed a reply. The Court granted the parties’ stipulated request to advance the hearing to November 8, 2023. The Court later continued the hearing to December 26, 2023.
On October 2, 2023, the Court granted Defendant’s ex parte application in part and continued the trial to January 29, 2024. The Court denied without prejudice Defendant’s request to continue or reopen expert discovery.
Trial is currently scheduled for January 29, 2024.
PARTIES’ REQUESTS
Defendant requests that the Court grant Defendant leave to augment Defendant’s expert designation.
Plaintiff asks the Court to 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
Defendant requests that the Court grant leave to augment Defendant’s expert witness designation to add Young Bui, Ph.D., as an expert in cellphone usage and driver distraction.
On August 14, 2023, Plaintiff and Defendant served expert designations. Plaintiff designated an expert reconstructionist. Defendant did not designate an accident reconstructionist who would opine about cell phone use or driver distraction. On September 1, 2023, Defendant served a supplemental designation identifying Dr. Bui as an expert retained to provide testimony about “cell phone usage and possible driver distractions.”
Defendant argues he would not in the exercise of reasonable diligence have determined to call Dr. Bui at the time of the August 14, 2023 designation because he did learn until June 12, 2023, that Plaintiff intended to argue Defendant was driving while using his cell phone at the time of the accident. (See Code Civ. Proc., § 2034.620, subd. (c)(1).) But Defendant does not explain why, in the exercise of reasonable diligence, he did not find an appropriate expert to address this argument in the two months between June 12, 2023 and the August 14, 2023 designation.
Defendant also argues that Defendant’s failure to designate Dr. Bui until September 1, 2023 was based on Defendant’s counsel’s mistake, inadvertence, surprise, or excusable neglect. (See Code Civ. Proc., § 2034.620, subd. (c)(2).) According to Defendant, his attorney did not recognize the need to designate an accident reconstruction expert until the attorney reviewed the Plaintiff’s August 14, 2023 expert designation.
Defendant also argues that (1) Plaintiff has not relied on Defendant’s failure to designate Dr. Bui earlier and (2) allowing Defendant to augment his expert designation to include Dr. Bui will not unfairly prejudice Plaintiff because Plaintiff can depose Dr. Bui before trial.
In response, Plaintiff argues that Defendant knew about the issue of distracted driving as early as 2021, citing Plaintiff’s requests that Defendant keep and produce cellphone records from the time of the accident. Plaintiff also argues that (1) Defendant previously designated and withdrew two different experts (Ken Solomon on accident reconstruction, human factors, and distraction and Matthew Albee on cell phones) and is now “witness shopping” to obtain a better witness, (2) expert designations were initially due on March 3, 2023 (based on the previous trial date), not August 14, 2023, making Defendant’s September 28, 2023 motion untimely, (3) although Defendant argues that his counsel forgot to designate an expert on cell phone usage or driving distraction on August 14, 2023, Defendant in fact designated Matthew Albee on August 14, 2023 as a cell phone expert (but then withdrew him), and (4) after Defendant withdrew Solomon as an expert, Plaintiff withdrew Dr. Phillip Kellman, the expert Plaintiff had designated to counter Solomon.
Plaintiff has presented a compelling case that Defendant’s failure to designate Dr. Bui until September 1, 2023 was based not on counsel’s mistake, inadvertence, surprise, or excusable neglect but on Defendant’s fully-informed decisions about expert witnesses. (Code Civ. Proc., § 2034.620, subd. (c)(2).) In addition, Defendant has not shown that he would not in the exercise of reasonable diligence have determined to call Dr. Bui. (Code Civ. Proc., § 2034.620, subd. (c)(1).) Therefore, the Court denies the motion.
CONCLUSION
The Court DENIES Defendant Farhad Kamani’s motion to augment 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.