Judge: Marcella O. Mclaughlin, Case: 37-2020-00045956-CU-NP-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 26, 2023

10/27/2023  01:30:00 PM  C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Marcella O McLaughlin

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Civil - Unlimited  Non-PI/PD/WD tort - Other Motion Hearing (Civil) 37-2020-00045956-CU-NP-CTL MAKI VS SAN DIEGO FLOOD BUSTERS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/28/2023

A. The motion to augment expert witness list is granted. Code Civ. Proc. §§ 2024.050, 2034.620.

Plaintiff has met her burden of demonstrating all of the conditions set forth in section 2034.620.

Specifically, the evidence before the court shows that the failure to designate William C. Gabrielson, and Gary L. Smith was due to a lack of communication by plaintiff's attorneys. (Nisbet Decl., ¶¶ 4-6.) Plaintiff then moved promptly to seek relief by filing the instant motion on August 25, 2023 – i.e., just weeks after discovering the mistake – and served a copy of the proposed expert witness information on defense counsel. (Raftery Decl., ¶ 8, 10; Nisbet Decl., ¶¶ 8, 12.) Moreover, Flood Busters has failed to establish that it will be prejudiced in its defense of the case. Trial is still more than two months away, Flood Busters has indicated it does not intend to depose Mr. Gabrielson (Raftery Decl., ¶ 9; Nisbet Decl., ¶ 10), and Flood Busters has apparently 'known all along that plaintiff would need experts to testify as to the value of the jewelry and hand bags.' (Oppo. at 2:25-26.) 'A party is not 'prejudiced' simply because the new expert will give testimony adverse to the party.' Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1479.

Plaintiff is directed to make Mr. Gabrielson and Mr. Smith immediately available for deposition. Code Civ. Proc. §§ 2034.280(c), 2034.620(d). Flood Busters may designate counter experts in response to Mr. Gabrielson and Mr. Smith.

B. Flood Busters' request that plaintiff cover the cost of the expert depositions is denied. However, in the event that Flood Busters is found to be the 'prevailing party' pursuant to Code of Civil Procedure section 1032 or an applicable attorney fee provision, any expenses incurred in connection with the new expert depositions may be requested in a motion for attorney's fees or added to the cost bill.

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