Judge: Michael E. Whitaker, Case: 18STCV04430, Date: 2022-10-05 Tentative Ruling

Case Number: 18STCV04430    Hearing Date: October 5, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

            Defendant Dianne Lynn Klingbeil (Defendant) moves the Court for leave to augment the expert witness designation (“Designation”).  Plaintiff Aml Moumare (“Plaintiff”) opposes the Motion.  Defendant replies to the Opposition.

ANALYSIS

Per Code of Civil Procedure section 2034.610, subdivision (a), “On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to…[a]ugment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.”  (Code Civ. Proc., § 2034.610, subd. (a)(1), emphasis added.)  “Under section 2034.610, the court may permit amendment of an expert witness disclosure, if section 2034.620's conditions stated are met.”   (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541.)[1], 

            Under Section 2034.610, subdivision (a), “the court may grant leave to either or both of the following: (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, 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.”  Section 2034.610, subdivision (b), provides that “a motion under (a) shall be made at 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.”  And subdivision (c) of Section 2034.610 requires that the motion be accompanied by a meet and confer declaration. 

Under Section 2034.620, “the court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied: 

1. The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses. 

    

2. 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. 

1. 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, and (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.” 

1. 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.” 

Defendant moves the Court to augment her Designation to add the two experts that defendant Stater Bros. Markets (“SBM”) had previously designated (on January 27, 2022).  However, SBM settled with Plaintiff and thus SBM’s expert witnesses will not be called for trial.  (Bartick Decl., ¶¶ 4-5, Exh. C.)   Defendant contends that she was required to bring this Motion in order to present those expert witnesses at trial.    The two experts are Nancy Fraser Michalski, B.S.N., R.N. (“Michalski”), who will be testifying as to medical billing, and Sandiford Helm II, M.D. (“Helm”), who will be testifying as to pain management (hereinafter referred to collectively as “Experts”).  (Ibid.)  Defendant intended to rely on the Experts’ testimony at trial, and had not designated them in reliance, and upon the anticipation, that testimony would be presented by SBM.  (Id. at ¶ 6.)  The Experts have indicated that they will not appear for deposition (in anticipation of trial) unless they are retained as experts.  (Id. ¶ 7.)  On February 17, 2022 Defendant served an Amended Designation which included the Experts.  (Id. at ¶ 8, Exh. D.)  Defendant contends that Plaintiff will not suffer prejudice because these experts were previously designated by SBM, and Defendant sought leave to amend the Designation soon after the settlement, and filed this motion upon learning that Plaintiff would not stipulate to augmenting the Designation.[2]

Plaintiff contends that the Motion should be denied because Plaintiff relied on Defendant’s Designation, and her failure to timely augment the Designation would be highly prejudicial.  Plaintiff represents that she settled with SBM on February 9, 2022, and Defendant had until February 16, 2022 to supplement her expert witness list.  Plaintiff represents that she relied on the fact that Defendant did not timely supplement her expert witness list.  Plaintiff further represents that she will be prejudiced because she will not have enough time to prepare and review the expert files, take the experts’ depositions, and find rebuttal experts and schedule the depositions.

The Court finds that Defendant has met the requirements to augment the Designation.  Here, Defendant’s Augmented Designation was served on Plaintiff one day after the deadline to serve the same.  In addition, on February 23, 2022 (7 days after the deadline) Defendant sought ex parte relief to augment the witness list, and after that ex parte was denied because there was no “immediate danger” or threat of “irreparable harm,” in accordance with the Court’s ruling, Defendant filed this motion on the first available hearing date.  (Reply p. 5.)  Furthermore, it did not become clear that SBM’s experts would be unavailable for deposition (and trial) until SBM dismissed its Cross-Complaint against Defendant on March 10, 2022, which is one day after this motion was filed. The Court finds that Defendant’s failure to timely augment the Designation is excusable neglect, and that Defendant acted with reasonable diligence under the circumstances in seeking to augment the Designation. 

The Court finds Plaintiff’s argument that it relied on Defendant’s Designation unconvincing.  As a preliminary matter, Plaintiff was on notice of the Experts, as SBM had designated those experts.  In addition, to the extent that Plaintiff believed that those experts would no longer be testifying following the settlement, Plaintiff was put on notice over seven months ago that Defendant sought to designate the Experts (to offer the same testimony), and while the Augmented Designation was served one day late, it is excusable neglect.  The Court notes that Plaintiff cites to Gallo v. Peninsula Hospital (1985) 164 Cal.App.3d 899, to support her contention that augmentation should not be allowed, but Gallo is distinguishable.  In Gallo,  there was no record regarding excusable neglect, reasonable diligence, inadvertence, or surprise for the Court of Appeal to consider and determine whether the trial court had abused its discretion in allowing the expert witness augmentation.  Here, as previously discussed, the Court has determined that Defendant exercised reasonable diligence and any purported neglect is excusable. 

CONCLUSION AND ORDER

            Therefore, the Court grants Defendant’s Motion to Augment Expert Witness Designation and orders Defendant to make the expert witnesses, Nancy Fraser Michalski, B.S.N., R.N. and Sandiford Helm II, M.D., available for depositions forthwith. 

            Further, the Court grants Plaintiff leave to designate additional expert witnesses or to elicit additional opinions from those previously designated regarding medical billing and pain management, and if Plaintiff either designates additional expert witnesses or seeks to elicit additional opinions, Plaintiff shall make said expert witnesses available for depositions forthwith. 

            Lastly, to afford the parties ample time to complete the expert witness depositions, the Court will continue the trial if the parties make that request at the hearing on the motion.

            Defendant shall provide notice of the Court’s ruling and file a proof of service regarding the same.