Judge Matthew C. Braner, Case 37-2022-00001493-CU-BC-CTL 2024-03-01 Tentative Ruling

Judge: Matthew C. Braner, Case: 37-2022-00001493-CU-BC-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024 09:00:00 AM C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2022-00001493-CU-BC-CTL GEORGEES VS GEORGE [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff Eddie Georgees's motion to submit tardy expert witness information is GRANTED.

The court may grant a party who has failed to timely submit expert witness information leave to submit that information on a later date. (Code Civ. Proc., § 2034.710.) The court shall grant leave to submit tardy expert witness information if: (a) '[t]he court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses;' and (b) '[t]he court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.' (Code Civ. Proc., § 2034.720, subds. (a), (b).) The court must also determine the moving party did all of the following: - Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

- Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

- 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.

(Code Civ. Proc., § 2034.720, subd. (c).) Here, each of these requirements has been met. First, the court has considered Defendant's reliance argument, and is not persuaded that it outweighs Plaintiff's need for the expert evidence in light of the changed circumstances. Indeed, Defendant does not actually argue that she relied on Plaintiff's failure to designate an expert when she decided not to designate her own. Instead, she argues the decision was founded on a belief that expert evidence will not assist the trier of fact, because the 'only evidence probative of [the enforceability of the contract] concerns the intent of the contracting parties, as evidenced by the testimony of the parties themselves and the percipient witnesses who were present when the contract was purportedly formed.' (ROA #82, Defendant's Oppo., pp. 3-4.) However, Defendant ignores the changed circumstances following Hikmat Georgees's contradictory deposition testimony on January 17, 2024, wherein he indicated that Plaintiff and his brother had offered to sell him only the corporation and not the associated real property for $3 million (from which it may be inferred that a half share of the business was worth $1.5 million), which creates a conflict of interpretation with respect to the (recently located and produced) written Buyout Agreement. Given this testimony, the contract term 'Eddie Georgees will take over Seven Eleven at 7448 Jackson Dr., San Diego, CA 92119,' can be reasonably interpreted to mean he will obtain ownership of the business and land, or of only the business. Thus, expert opinion in relation to an appraisal of both the business and real property close in time to execution of the contract is now highly relevant to interpreting the term and challenging the Calendar No.: Event ID: TENTATIVE RULINGS

3087508 2 CASE NUMBER: CASE TITLE: GEORGEES VS GEORGE [IMAGED] 37-2022-00001493-CU-BC-CTL inference that $1.5 million was fair market value for only the business, and not both the business and the real property.

Second, the court disagrees that Defendant will be unduly prejudiced if Plaintiff is permitted to designate John Rimar as an expert and submit the required expert information. The delay was not caused by bad faith or gamesmanship; the court has little doubt that the copy of the Buyout Agreement was genuinely lost until November 2023, as producing it as early as possible would have benefited Plaintiff and likely would have moved the case more quickly to a resolution. In addition, a trial continuance to account for the additional needed discovery seems appropriate under the circumstances and to the benefit of both parties.

Finally, Plaintiff has complied with the requirements of subdivision (c). Failing to designate John Rimar as an expert and submit the required expert information was the result of surprise or excusable neglect.

The court agrees that locating a copy of the written Buyout Agreement in November 3, 2023, coupled with Hikmat Georgees's subsequent contradictory deposition testimony on January 17, 2024, triggered a substantial shift in the nature of the dispute to be resolved at trial. Prior to these events, Defendant's principal contention was that no agreement was entered because 'there is no original and/or copy of the purported contract.' (ROA #50, Joint Trial Readiness Conference Report, p. 2.) Now that a copy of the agreement has been located, and deposition testimony has created a legitimate conflict of contract interpretation, it is excusable that Plaintiff did not seek to designate Mr. Rimar until after January 17, 2024. Plaintiff also promptly sought leave to submit the tardy information, which included service of the proposed expert witness information on Defendant.

Accordingly, Plaintiff's motion is granted.

Plaintiff is permitted to submit the proposed tardy expert witness designation and declaration attached as Exhibit A to the declaration of Maura Griffin. (ROA #71.) This order is conditioned on Plaintiff making Mr. Rimar available for deposition.

Defendant is entitled to designate her own expert to rebut Mr. Rimar's testimony. The court will hear from the parties regarding an appropriate deadline date for such designation.

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