Judge: Mark H. Epstein, Case: 20SMCV01883, Date: 2022-12-27 Tentative Ruling

Case Number: 20SMCV01883    Hearing Date: December 27, 2022    Dept: R

The court is in receipt of A&Y’s application to allow it to designate an expert and take an expert deposition after the discovery cut off has expired and after the time to designate experts has expired.  Defendant Metro has not agreed to this relief.

A&Y contends that through “mistake and inadvertence” counsel thought that the expert discovery deadlines and exchange schedule had been tied to the new trial date after the last trial date was continued.  Accordingly, although Metro had designated its expert in a timely way, A&Y failed to do so. 

The court has reviewed the stipulation.  The error by A&Y is not due to some ambiguity in the stipulation.  To the contrary, the stipulation is clear as to the various cut off dates and times for exchanges.  The designation was November 1, 2022 and the expert cut-off is December 29, 2022.

The court needs to better understand the nature of the mistake or inadvertence.  Given that the stipulation is so clear—the specific dates are written into the stipulation that this counsel signed—it is not mis-resolution of an ambiguity (which can often occur if discovery deadlines are not discussed in a stipulation to continue).  It is also odd that defendant designated its expert and that did not cause plaintiff’s counsel to explore the reason for the early designation. 

That said, the goal of the trial process is not to play “gotcha”; it is to allow a search for the truth.  There is no doubt but that plaintiff will be prejudiced by being unable to depose plaintiff’s expert or to designate an expert of its own.  Other than losing this tactical advantage, the court would like to hear what, if any, prejudice defendant will suffer from allowing the untimely designation and discovery and also what steps short of outright denial can be taken to mitigate that prejudice.

Depending on the answers, the court may rule today or may issue an OST to allow Judge Ford to hear the matter.