Judge: Lisa R. Jaskol, Case: 22STCV08074, Date: 2024-10-21 Tentative Ruling

Case Number: 22STCV08074    Hearing Date: October 21, 2024    Dept: 28

Having considered the moving and opposition papers, the Court rules as follows. 

BACKGROUND 

On March 7, 2022, Plaintiffs Blanca Valle Dominguez and Nathaniel Tavares by and through his mother and guardian ad litem Blanca Valle Dominguez filed this action against Defendants Noel Espinoza Torres (“Defendant”) and Does 1-20 for negligence and motor vehicle. 

On March 8, 2022, the Court appointed Blanca Valle Dominguez to serve as Plaintiff Nathaniel Tavares’s guardian ad litem. 

On September 28, 2023, Defendant filed an answer. 

On September 30, 2024, Defendant filed a motion for leave to submit tardy expert witness information.  The motion was set for hearing on December 6, 2024. The Court granted Defendant’s ex parte application to advance the hearing on the motion and rescheduled the hearing for October 21, 2024.  On October 14, 2024, Plaintiffs filed an opposition. 

Trial is currently scheduled for November 6, 2024. 

PARTIES’S REQUESTS 

Defendant asks the Court for leave to submit tardy expert witness information. 

Plaintiffs ask the Court to deny the motion. 

LEGAL STANDARD

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.) 

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 August 28, 2024, Plaintiffs served a demand for exchange of expert information on Defendant.  Plaintiffs set September 17, 2024 as the exchange date. 

On September 17, 2024, Defendant served a designation of expert witness information listing retained expert Kenneth Ishizue, M.D., and non-retained experts.  The designation, however, did not include counsel’s declaration under Code of Civil Procedure section 2034.260.  Defendant asserts that the failure to include counsel’s declaration was the result of his counsel’s mistake and excusable neglect. 

On September 18 or 20, 2024, Plaintiffs objected to Defendant’s September 17, 2024 designation as invalid and non-compliant.  (See Opposition p. 5.) 

On September 26, 2024, Defendant served an amended expert witness designation which included counsel’s declaration.  The amended designation listed retained expert Kenneth Ishizue, M.D., and one non-retained expert.  On September 30, 2024, Defendant filed this motion, which includes a meet and confer declaration. 

Plaintiffs oppose the motion, arguing that Defendant has not satisfied the requirements of Code of Civil Procedure section 2034.720. 

The Court finds that Defendant has satisfied the statutory requirements.  Defendant’s counsel failed to include a declaration in the September 17, 2024 expert witness designation as the result of counsel’s mistake, inadvertence, surprise, or excusable neglect.  Defendant sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.  On September 26, 2024, Defendant promptly served a copy of the proposed expert witness information on Plaintiffs.  The proposed expert witness list designated the same retained expert (Dr. Ishizue) listed in Defendant’s September 17, 2024 designation and narrowed the list of non-retained experts to one witness.  Defendant has agreed to make his expert immediately available for deposition. 

The Court has taken into account the extent to which Plaintiffs have relied on the absence of a list of expert witnesses.  The Court finds that Plaintiffs will not be prejudiced in maintaining their action on the merits by an order granting Defendant’s motion.  The Court grants the motion. 

CONCLUSION 

The Court GRANTS Defendant Noel Espinoza Torres’s motion for leave to submit tardy expert witness information.  The order is conditioned on Defendant Noel Espinoza Torres making his expert available immediately for deposition.  Defendant Noel Espinoza Torres is ordered to serve a corrected expert designation within 5 days of the Court’s ruling. 

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.