Judge Lon F. Hurwitz, Case 17-00910966 2022-11-21 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 17-00910966, Date: 2022-11-21 Tentative Ruling

Motion for Leave to Augment Expert Designation

RULING:

The motion is denied as there is prejudice to the parties and Clauss has not demonstrated excusable neglect.

Prejudice to the Parties

Trial in this matter is scheduled to proceed on January 23, 2022. Further, the parties have already stipulated to extend the five-year statute, which runs on December 22, 2022. the parties will only have two months to prepare for trial, including deposing the experts of all parties during the year-end holiday period. Allowing another expert (and the rebuttal expert to be designated by Cross-complainants) will prejudice the remaining parties.

Excusable Neglect

“’Excusable neglect’ is generally defined as an error ‘a reasonably prudent person under the same or similar circumstances might have made.’ (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) Excusable neglect is not shown by the failure to discover a fact until it is too late; the party seeking relief must establish that he or she failed to discovery it in the exercise of reasonable diligence, (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 43–44.) “The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief.” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293).

Clauss provides no dates as to when the former partner left and a new partner took over. Clauss provides no dates as to when the new partner determined Clauss needed a Crawford expert. Clauss provides no dates as to how many potential experts were contacted, when the partner began contacting potential experts and when each expert was contacted. Also, it is unclear why Clauss waited until the end of October to bring its motion to amend when it was clearly aware of the need to do so no later than July 20, 2022, when Mr. Lincoln cleared conflicts. (ROA 656, D’Amico Decl. ¶7.) Further, Clauss then waited until October 13, 2022, to begin the meet and confer process with Cross-complainants. (ROA 656, D’Amico Decl. ¶10.) Clauss submits no evidence or explanation to show why this motion was not brought earlier. It is not clear a reasonable prudent person would have acted in the same manner. Therefore, there is no excusable neglect demonstrated.

Motion to Compel Deposition (Oral or Written)

RULING ON ALL 3 MOTIONS TO COMPEL:

The Court denies the Motions to Compel on the grounds Clauss did not timely set the depositions prior to the stipulated factual discovery cut-off date of July 22, 2022.

A stipulation is a contract and subject to the same rules of construction. (Nunn v. JPMorgan Chase Bank, N.A. (2021) 64 Cal.App.5th 346, 367 [citing J. C. Penney Co. v. Superior Court (1959) 52 Cal.2d 666, 669].) Therefore, a stipulation, as a contract, is not enforceable unless there has been a “’meeting of the minds’” (i.e., mutual consent) on all material points. “Contract formation is governed by objective manifestations, not the subjective intent of any individual involved.” (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1277.)

The evidence shows there was a meeting of the minds as to the date of July 22, 2022, in the stipulation. Clauss agreed to the preamble of the stipulation, which states the fact discovery “has a current cut-off date of July 22, 2022.” He then stipulated that the fact discovery cut-off “will remain” July 22, 2022. Further, the stipulation states that an “express condition” of the stipulation is that the “fact discovery cut-off will remain July 22, 2022,” indicating that the parties negotiated the date as a part of the terms of the stipulation. Therefore, Clauss stipulated to a current cut-off date of July 22, 2022, thereby waiving the statutory cut-off date of July 25, 2022.

The notices are therefore untimely and the motion is denied. No sanctions are awarded to either party.