Judge: Mark A. Young, Case: 21SMCV00101, Date: 2023-08-21 Tentative Ruling

Case Number: 21SMCV00101    Hearing Date: January 11, 2024    Dept: M

CASE NAME:           Springlife LLC, et al., v. Mobbil Inc., et al.

CASE NO.:                21SMCV00101

MOTION:                  Motion for Untimely Designation of Experts

HEARING DATE:   1/11/2024

Legal Standard

            Code of Civil Procedure §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.

            CCP §2034.720 states that the court shall grant leave to submit tardy witness information 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.

(CCP §2034.720; see Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 343, 3653 [finding that attorney’s miscalendaring the time of designation was a result of error and excusable neglect]; Plunkett v. Spaulding¿(1997) 52 Cal.App.4th 114, 137 disapproved on other grounds by Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 [stating that an honest mistake of law is a valid ground for relief based on mistake, inadvertence, surprise of excusable neglect].)

Analysis

Plaintiffs Springlife LLC and David Javdan move for relief to designate experts. On August 21, 2023, the Court continued the trial on this matter to February 5, 2023. All fact and expert discovery deadlines were continued based on that date. On November 14, 2023,

Defendants made a demand for exchange of statutory expert witness information, specifying

December 18, 2023, as the date of exchange. (Arquell Decl., Ex. A.) On December 18, 2023, Defendants timely designated experts. (Id.) However, Plaintiffs did not disclose any expert witnesses by the statutory deadline. On December 20, 2023, Plaintiffs' counsel served their expert designation.

            Plaintiffs’ counsel declaration provides sufficient evidence showing that their failure to designate was the result of “mistake, inadvertence, surprise, or excusable neglect” and was promptly corrected. Plaintiffs’ counsel, Michael Green, explains that he was out of the country in the Philippines from December 13, 2023, to December 18, 2023. (Green Decl., ¶¶4-6.) Although he had taken his laptop with him on his trip, he could not log in to his document database, preventing him from completing the designation while he was away. (Id. ¶ 4.) He further explains that upon his return, he immediately finalized and timely served Plaintiff’s Expert Designation. (Id. ¶5.) However, due to jetlag from the 15-hour time difference, counsel inadvertently served the document at the wrong email address. (Id. ¶ 6.) Plaintiffs promptly corrected the issue on December 20, 2023, when counsel realized his error and immediately re-served the designation to the correct address. (Id.) Defendants declined to accept the late designation. Plaintiffs promptly sought relief two days later via ex parte motion on December 22, 2023.

            Defendants object to the late designation. Defendants argue that it would be unfair to allow Plaintiffs to present experts and expert testimony when they failed to properly designate experts pursuant to the Code, and where have not offered their retained and/or non-retained experts for deposition. Defendants do not show any prejudice to their defense on the merits. Furthermore, there is no indication that Defendants have relied on the absence of a list of expert witnesses. However, the Court concurs that Plaintiffs must make their experts immediately available for deposition. Indeed, this is a prerequisite to relief. (CCP § 2034.720(d).) Plaintiffs do not show that they will immediately make their experts available for a deposition. Plaintiffs must stipulate as such before the motion may be granted.

       If Plaintiffs meet this additional requirement, the motion is GRANTED.