Judge: Maurice A. Leiter, Case: 20STCV40403, Date: 2023-04-14 Tentative Ruling

Case Number: 20STCV40403    Hearing Date: April 14, 2023    Dept: 54

Hearing Date: April 14, 2023

Department 54, Judge Maurice A. Leiter

Motion to Augment Expert Witness Designation

Moving Party: Plaintiff Antoinine Di Modica

Responding Party: Defendants Michael Kaylor, et al.

T/R:     PLAINTIFF’S MOTION IS GRANTED.

            PLAINTIFF TO NOTICE.

            The Court considers the moving papers, oppositions, and reply.

BACKGROUND 

On October 20, 2020, Plaintiff Antoinine Di Modica in her individual capacity and in her capacities as Successor Trustee of the Frank Di Modica and Antoinine Marie Di Modica Revocable Trust, as Personal Representative of the Estate of Frank Di Modica, and as Trustee of the Antoinine Marie Di Modica Revocable Trust, sued Defendants Michael Kaylor et al. Plaintiff asserts causes of action for financial elder abuse, professional malpractice, fraud, conversion, and constructive trust. This action arises out of the creation of a Deferred Sales Trust (“DST”) from the sale of Plaintiff’s real property located in Santa Monica.

ANALYSIS

On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to (1) augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained; and/or (2) amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give. (CCP § 2034.610(a).) This motion shall be made a sufficient time in advance to permit the deposition of any expert to whom the motion relates to be taken before the discovery cut-off, unless exceptional circumstances exist. (CCP § 2034.610(b).) The motion shall be accompanied by a meet and confer declaration.  (CCP § 2034.610(c).)  

The court shall grant leave to augment or amend an expert witness list only 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 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 either of the following: 
 

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness. 
 

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: 
 

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. 
 

(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action. 
 

(d) Leave to augment or amend 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 § 2034.620.) 

            Plaintiff moves to augment her expert witness designation to add two non-retained physicians, Dr. Michael Gold and Dr. Albert K. Bui, who treated Frank Di Modica for dementia and Alzheimer’s Disease. Plaintiff represents that they were left off Plaintiff’s expert witness designation due to the counsel’s error. Counsel declares that she was her mother’s caregiver and required two emergency surgeries herself over the last several months, which caused her to inadvertently leave Dr. Gold and Dr. Bui off the expert witness designation. Plaintiff’s counsel diligently informed Defendants of the error and filed this motion when she realized the mistake. Plaintiff also asserts that the identities of Dr. Gold and Dr. Bui were disclosed during discovery.

            In opposition, Defendants assert Plaintiff has been dilatory in seeking relief and the proposed augmentation would prejudice Defendants. Defendants argue that Plaintiff consistently has objected to discovery into Mr. DiModica’s medical conditions as irrelevant. Defendants also contend that Plaintiff did not disclose the identities of the experts until after the discovery cut-off date.

            The Court will allow Plaintiff to augment the expert witness designation. Mr. DiModica’s mental state has been at issue in this action since its inception and there remains adequate time to depose these witnesses before trial. Defendants will not be prejudiced by augmentation. The Court also finds that the initial omission of these experts was due to excusable neglect by Plaintiff’s counsel and counsel diligently sought to remedy the issue when the mistake was discovered.

            Plaintiff’s motion is GRANTED.