Judge: Lynne M. Hobbs, Case: 22STCV20674, Date: 2024-01-12 Tentative Ruling
Case Number: 22STCV20674 Hearing Date: January 12, 2024 Dept: 30
22STCV20674 LINZIE VS CHAVEZ
TENTATIVE
Defendant’s motion for leave to submit a late expert designation is GRANTED, on the condition Defendant make Dr. Spoonmore available immediately for a deposition.
Discussion
Defendant
moves for leave to file a late expert designation of Dr.
Mark J. Spoonamore, M.D., a Board-Certified Orthopedic Surgeon, arguing that due to mistake, inadvertence, surprise
or inexcusable neglect, defense counsel did not designate Dr. Spoonamore until
six days after the expiration of the deadline for expert designation. Counsel
argues that the deadline was mis-calendared in the case management system
employed by Defense Counsel. (Moncayo Decl., ¶11.) Upon discovering the error
on November 8, 2023, Defense Counsel immediately drafted and served Plaintiff’s
Counsel with Defendant’s Expert Witness Designation. At that time, Defense
Counsel designated a single retained expert, Dr. Spoonamore.
Defense Counsel provided Plaintiff’s counsel two
dates for Dr. Spoonamore’s deposition to be taken: December 5, 2023, or December
15, 2023.
On April 24, 2023, Defendant
served a demand for physical medical examination on Plaintiff with Dr.
Spoonamore. On June 21, 2023, Plaintiff submitted to the independent medical
examination Dr. Spoonamore. On September 7, 2023, Defendant provided the IME
report to Plaintiff’s counsel.
Defendant
meets the requirements set forth in CCP sections 2034.710, and 2034.720,
provided Defendant can make Dr. Spoonmore available immediately for a
deposition.
First,
Defendant sought ex parte relief on December 3, 2023, and filed this
motion on December 6, 2023, and thus when Defendant sought relief, there was
sufficient time to permit the deposition of Dr. Spoonamore to proceed prior to
the expert discovery cutoff date. (CCP section 2034.710(b).)
As to
the requirements under CCP section 2034.720, Plaintiff cannot have relied on
the absence of the designation of Dr. Spoonamore because Plaintiff knew he
would be retained as an expert as he was the doctor who performed Plaintiff’s
defense IME. Moreover,
Plaintiff will not be prejudiced because the
parties are in the process of taking expert depositions. Next, Defendant’s failure to submit was due to mistake,
inadvertence, surprise, or excusable neglect as defense counsel failed to
calendar the expert designation deadline. Defendant sought
leave promptly after learning of the mistake. Defendant learned of the mistake
on November 8, 2023, and filed an ex parte application on December 4,
2023, seeking to continue trial and shorten the hearing date on this motion. In
the meantime, Defendant attempted to meet and confer with Plaintiff’s counsel
over the issue. Lastly, Defendant immediately served the expert designation
after learning of the error. Plaintiff’s counsel knew that Dr. Spoonamore was retained
as an expert, produced Plaintiff for the medical exam and had a copy of the
doctor’s report. Defense
counsel also states in his declaration that he will produce Dr. Spoonamore for
deposition upon granting of this Motion.
As
Defendant has satisfied all the statutory requirements, the Court does not find
any reason to deny the instant motion. Further, if Plaintiff would
like to continue trial or extend the expert discovery deadline, the Court is
willing to do so.
Conclusion
Accordingly, Defendant’s motion for leave to submit a late expert designation is GRANTED, on the condition Defendant make Dr. Spoonmore available immediately for a deposition.