Judge: Lisa R. Jaskol, Case: 21STCV25514, Date: 2024-11-26 Tentative Ruling
Case Number: 21STCV25514 Hearing Date: November 26, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On July 12, 2021, Plaintiffs Soraya Pastor (“Pastor”) and Firooz Nosratifar (“Nosratifar”) filed this action against Defendants Birendra Dutt ("Dutt"), Uplander Properties, LLC ("Uplander"), and Does 1-50 for motor vehicle negligence, negligence per se, and loss of consortium.
On December 30, 2021, Plaintiffs filed a first amended complaint for motor vehicle negligence and loss of consortium.
On January 14, 2022, Dutt and Uplander ("Defendants") filed an answer.
On February 28, 2024, the parties stipulated that Nosratifar “shall dismiss, with prejudice, all claims and causes of action against defendants and shall file the appropriate request for dismissal with the court within 10 (ten) days of the signing of this stipulation.”
On September 25, 2024, Defendants filed a motion to limit and/or exclude excessive experts at trial. The motion was set for hearing on November 26, 2024. Plaintiffs have not filed an opposition.
Trial is currently scheduled for January 10, 2025.
PARTIES’ REQUESTS
Defendants “request an order limiting and/or excluding any and all evidence and testimony from [Plaintiffs’] thirty-seven (37) non-retained expert witnesses at trial.”
LEGAL STANDARD
Code of Civil Procedure section 2034.250 provides:
“(a) A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.
“(b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions:
“(1) That the demand be quashed because it was not timely served.
“(2) That the date of exchange be earlier or later than that specified in the demand.
“(3) That the exchange be made only on specified terms and conditions.
“(4) That the production and exchange of any reports and writings of experts be made at a different place or at a different time than specified in the demand.
“(5) That some or all of the parties be divided into sides on the basis of their identity of interest in the issues in the action, and that the designation of any experts as described in subdivision (b) of Section 2034.210 be made by any side so created.
“(6) That a party or a side reduce the list of employed or retained experts designated by that party or side under subdivision (b) of Section 2034.210.
“(c) If the motion for a protective order is denied in whole or in part, the court may order that the parties against whom the motion is brought, provide or permit the discovery against which the protection was sought on those terms and conditions that are just.
“(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”
(Code Civ. Proc., § 2034.250.)
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
On August 10, 2024, Defendants served a demand for exchange of expert witness information. (Exh. A.) On September 12, 2024, Defendants designated their experts. (Motion p. 1.) Also on September 12, 2024, Plaintiffs designated 37 treating doctors as Plaintiffs' non-retained experts, stating that Plaintiffs might call all 37 experts to testify at trial. (Exh. B.) Defendants’ counsel met and conferred with Plaintiffs’ counsel about the large number of non-retained experts Plaintiffs had designated. Plaintiffs did not tell Defendants which of the 37 non-retained experts Plaintiffs intended to call at trial.
Defendants argue that Plaintiffs’ designation of 37 non-retained experts imposes an undue burden and expense on Defendants because they will have to depose each witness even if Plaintiffs ultimately call only some of the witnesses to testify at trial. According to Defendants, the Court has authority under Code of Civil Procedure sections 2034.250 and 2034.300 to prevent this undue burden and expense by requiring Plaintiffs to identify a limited number of the 37 non-retained expert witnesses who will provide non-duplicative testimony at trial and by excluding the remaining non-retained experts. In the alternative, Defendants ask the Court to bar all of Plaintiffs’ non-retained experts from testifying at trial.
The Court finds good cause and grants Defendants’ request for a protective order limiting the number of Plaintiffs’ non-retained expert witnesses who can testify at trial to five witnesses. The Court orders Plaintiffs to submit a list of no more than five non-retained expert witnesses who are expected to testify at trial and to specify the subject area for each of those non-retained expert witnesses.
CONCLUSION
The Court GRANTS the motion filed by Defendants Birendra Dutt and Uplander Properties, LLC to limit and/or exclude excessive experts at trial. The Court ORDERS Plaintiffs Soraya Pastor and Firooz Nosratifar to file and serve a list of no more than five non-retained expert witnesses (out of the 37 initially designated) who are expected to testify at trial and to specify the subject area for each witness. Plaintiffs Soraya Pastor and Firooz Nosratifar are to file and serve the list within 10 days of the ruling on this motion and are to make the non-retained experts in the list available for deposition.
Moving
parties are ordered to give notice of this ruling.