Judge: Lisa R. Jaskol, Case: 22STCV31530, Date: 2024-12-23 Tentative Ruling

Case Number: 22STCV31530    Hearing Date: December 23, 2024    Dept: 28

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

BACKGROUND 

On September 27, 2022, Plaintiffs Oliver de Gennaro and Katherine Bonaparte (“Plaintiffs”) filed this action against Defendants Montessori of Calabasas, Inc., Kailani Musche (“Kailani Musche”), Steven Musche (“Steven Musche”), and Does 1-50 for premises liability, negligence, motor vehicle negligence, and loss of consortium. 

On October 5, 2022, Plaintiffs filed a first amended complaint adding Defendant Realty Income Corporation (“Realty”). 

On October 19, 2022, Kailani Musche and Steven Musche filed an answer and a cross-complaint against Cross Defendants Montessori of Calabasas, Inc., Realty, and Roes 1-100 for indemnity, apportionment of fault, comparative fault, and declaratory relief. 

On December 19, 2022, Realty filed an answer to Plaintiffs’ complaint and a cross-complaint against Cross-Defendants Montessori of Calabasas, Inc., Kailani Musche, Steven Musche, and Roes 1-25 for equitable indemnity, negligence, contribution, apportionment of fault, and declaratory relief. 

On December 22, 2022, Defendant M of C, Inc. dba Montessori of Calabasas, erroneously sued as Montessori of Calabasas, Inc. (“Montessori”) filed an answer to Plaintiffs’ amended complaint. 

On December 29, 2022, Montessori filed an answer to the cross-complaint of Kailani Musche and Steven Musche. 

On March 9, 2023, Plaintiffs amended the complaint to include Defendants City of Calabasas as Doe 1 and County of Los Angeles as Doe 2. 

On June 6, 2023, the Court dismissed Defendant County of Los Angeles without prejudice at Plaintiffs’ request.  On July 19, 2023, the Court dismissed Defendant City of Calabasas without prejudice at Plaintiffs’ request. 

On August 16, 2023, Plaintiffs filed a second amended complaint against Montessori, Realty, Kailani Musche, Steven Musche, City of Calabasas, and Does 2-50 for premises liability, negligence, motor vehicle negligence, loss of consortium, and dangerous condition of public property. 

On February 20, 2024, based on the parties’ stipulation, the Court found that the settlement between Plaintiffs, Kailani Musche, and Steven Musche was made in good faith.  The Court dismissed Plaintiffs’ complaint against Kailani Musche and Steven Musche with prejudice. 

On October 31, 2024, Plaintiffs filed a motion to strike Defendants’ expert, Marcus Mazza.  The motion was set for hearing on December 23, 2024.  On December 11, 2024, Montessori and Realty (“Defendants”) filed an opposition.  On December 17, 2024, Plaintiffs filed a reply. 

PARTIES’ REQUESTS 

Plaintiffs ask the Court to strike Defendants’ expert Marcus Mazza. 

Defendants ask the Court to deny the motion. 

LEGAL STANDARD 

“After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses” to the extent specified by Code of Civil Procedure section 2034.210.  (Code Civ. Proc., § 2034.210.) 

Code of Civil Procedure section 2034.260, subdivision (a), provides: 

“(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange.”  

(Code Civ. Proc., § 2034.260, subd. (a).) 

          Code of Civil Procedure section 2034.280 provides: 

“(a) Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject. 

“(b) This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section 2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts. 

“(c) The party shall also make those experts available immediately for a deposition under Article 3 (commencing with Section 2034.410), which deposition may be taken even though the time limit for discovery under Chapter 8 (commencing with Section 2024.010) has expired.” 

(Code Civ. Proc., § 2034.280.)  

DISCUSSION 

          On August 7, 2024 and October 2, 2024, Defendants designated engineer Richard Tippett (“Tippett”), stating that he was “expected to testify regarding whether the egress from the parking lot of the Montessori of Calabasas facility complied with recognized industry standards of care and applicable requirements.”  On October 10, 2024, Plaintiffs’ counsel deposed Tippett. 

          On October 21, 2024, Defendants served a supplemental designation of Marcus Mazza (“Mazza”), stating he was “expected to testify as to accident reconstruction of the subject incident, including but not limited to the speed of the subject vehicles involved.” 

Plaintiffs argue that Defendants’ supplemental designation of Mazza violated Code of Civil Procedure section 2034.280 because Defendants are improperly using a supplemental designation to name a new expert (Mazza) to testify on the same subjects they previously designated another expert (Tippett) to testify about.  (See Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1718 [“a party who has designated an expert to testify on a particular subject may not replace that expert with one stated on a supplemental list”].)  Plaintiffs also argue that (1) Mazza is not a true rebuttal witness because he was not aware at his deposition of the opinions of Plaintiffs’ accident reconstruction expert, (2) Defendants had not retained Mazza when they served their supplemental designation, and (3) Defendants' counsel did not sign the supplemental designation. 

Defendants argue they properly listed Mazza in a supplemental designation because Tippett was not retained in Mazza’s field, accident reconstruction.   According to Defendants, they properly listed Mazza in a supplemental designation under Code of Civil Procedure section 2034.280 because (1) they participated in the initial exchange of expert witness information, (2) Plaintiffs designated an accident reconstruction expert who testified at his deposition about the speed of the vehicles involved in the accident, and (3) Defendants did not previously designate an expert on this issue. 

The Court concludes that Defendants complied with the requirements of Code of Civil Procedure section 2034.280 in their supplemental designation of Mazza.  Defendants designated Tippett and Mazza to testify about different subjects.  Plaintiffs cite no authority supporting their contention that the Court must strike a supplemental designation because it is not signed, because the expert testifies at his deposition that he is not aware of the opposing party’s expert’s opinion, or because the party designating the expert has not retained the designated expert at the time of the designation. 

The Court denies the motion. 

CONCLUSION 

The Court DENIES the motion of Plaintiffs Oliver de Gennaro and Katherine Bonaparte to strike the supplemental expert designation of Marcus Mazza served by Defendants M of C, Inc. dba Montessori of Calabasas, erroneously sued as Montessori of Calabasas, Inc., and Realty Income Corporation. 

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.