Judge: Michael E. Whitaker, Case: 19STCV13724, Date: 2023-03-29 Tentative Ruling

Case Number: 19STCV13724    Hearing Date: March 29, 2023    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

Defendants Jessica Yadegar, Saeed Yadegar, and Jasmine Yadegar (collectively, Defendants) move for leave to have the instant discovery motion heard after discovery has closed, and further move for the Court to strike Plaintiff Yassine Memmi (Plaintiff)’s expert witness designation and exclude Plaintiff’s expert witnesses.  Plaintiff opposes the motion.

On March 8, 2023, the original hearing date for the instant motion, the Court noted that Defendants had failed to file a declaration with their motion detailing their meet and confer efforts with Plaintiff regarding the issues raised in Defendants’ motion.  Accordingly, the Court found Defendants’ motion failed to comply with the meet and confer requirements of Code of Civil Procedure section 2024.050.  Accordingly, the Court continued the hearing for the instant motion to March 29, 2023 to allow Defendants’ time to file a supplemental declaration in compliance with Code of Civil Procedure section 2024.050, as well as file and serve a notice of continuance with the Court and Plaintiff.  On March 9, 2023, Defendants filed and served a notice of continuance on Plaintiff.  On March 22, 2023, Defendants filed and served a supplemental declaration confirming the parties’ participation in a telephone call discussing the issues outlined in Defendants’ instant motion and their inability to come to an agreement.  (Supplemental Declaration, ¶¶ 2-5, Exhibit A.)  Accordingly, the Court finds Defendants’ have met the meet and confer requirements set out in Code of Civil Procedure section 2024.050. 

The Court further notes that Plaintiff’s opposition was filed and served on March 7, 2023, and thus was untimely in relation to the original hearing date for the instant motion, on March 8, 2023.  However, as the motion was continued to March 29, 2023, the Court finds it will not unduly prejudice Defendants to consider Plaintiff’s untimely opposition on the merits, as Defendants have had sufficient time to review and reply to Plaintiff’s opposition, and thus the Court exercises its discretion to do so.

BACKGROUND

            The original trial date was set for August 4, 2022.  Defendants served a demand for expert designation on June 15, 2022, pursuant to the original August 4 trial date.  (Declaration of John K. Paulson, ¶ 4, Exhibit B.)  Plaintiff served her expert designation on June 14, 2022, designating Dr. Fardad Mobin (Mobin), John Smith (Smith), Andrew Morris (Morris) and Dr. Rakeesh Patel (Patel) as her retained experts.  (Declaration of John K. Paulson, ¶ 5, Exhibit C.)  

            On July 20, 2022, the Court granted Defendants’ motion to continue trial to December 9, 2022 and ordered that all discovery and pre-trial motion cut off dates shall be associated with the December 9, 2022 trial.  (See Minute Order, July 20, 2022.)  Based on the continued trial date, the new expert discovery cutoff date was November 28, 2022.  (Code Civ Proc., §§ 2016.060, 2024.030.)  Defendants noticed the depositions of Morris, Patel, Mobin and Smith, for November 1, 3, 7, and 9, 2023, respectively.  (Declaration of John K. Paulson, ¶¶ 7-8, 11-12, Exhibits E-F, I-J.)  All four expert witnesses failed to appear for the depositions and Defendants took certificates of non-appearance.  (Declaration of John K. Paulson, ¶¶ 9-12, Exhibits G-J.) 

            On December 6, 2022, the Court granted Plaintiff’s ex parte application to continue trial to February 9, 2023.  (See Minute Order, December 6, 2022.)  The Court further ordered the following:

ALL DISCOVERY REMAINS CLOSED PENDING FURTHER ORDER OF THE COURT.

PRE-TRIAL MOTION CUT OFF REMAINS IN EFFECT EXCEPT FOR THE MOTION TO CONTINUE TRIAL SET FOR HEARING ON JANUARY 20, 2023.

PLAINTIFF SHALL FILE AND SERVE THE MOTION TO CONTINUE TRIAL FORTHWITH.

(See Minute Order, December 6, 2022.)  Plaintiff did not file and serve a noticed motion to continue trial or reopen discovery in compliance with the Court’s December 6, 2022 order. 

            On December 10, 2023, Plaintiff sent an email to Defendants indicating she did not have deposition dates for Mobin or Morris for depositions, that she would not de-designate them as experts, but rather explained she would not call them if trial went forward on February 9, 2023.

            On January 11, 2023, Defendants deposed Patel who stated the following regarding the timing of his designation as Plaintiff’s expert witness for the underlying case:

            Q.  . . . Have you been retained in this case?

            A.  I have.

Q.  And when were you retained?

A.  I’m not sure of the exact date.

            Q.  Please provide me with an estimate.

A.  I think I knew about it, maybe, about three, four weeks ago.

…

Q.  Hess Panah contacted you three to four weeks ago to retain you as an expert in this matter?

A.  Well, I actually found out through my manager. So you are asking me when did I find out? It was through my office manager about three to four weeks ago.

(Declaration of John K. Paulson, ¶ 17, Exhibit M.)

            On February 3, 2023, Defendants’ deposed Smith who stated the following regarding the timing of his designation as Plaintiff’s expert witness for the underlying matter:

            Q.  When were you retained in this matter?

A.  Don’t have the precise answer to that.  But our first billable work – I was hired before that – was January 24^th of this year, but it’s a 2022 case.  So I had to be hired before that. 

            Q.  Do you have any emails, notes, or anything otherwise as to when you were retained?

A.  One second, sir.  I do see a reference to November 11^th of 2022.  That email should be in my file.  But it’s clear I was contacted before that. 

            …

            Q.  Do you have any reason to believe there would be any contact before that day?

            A.  Yes.  Because the context of that one indicates that there had already been discussion.

            Q.  Okay.  How would we find out this prior email? Where would that be?

A.  You know, my system doesn't save emails.  So what I always say, the easiest way to do it is go to the attorney -- 'cause you guys have much better email systems than I have -- and just ask them to print it out.

Q.  I've received -- And they've been produced. I just don't have anything before that November 11th email, I don't believe.

A.  All right. Well, then, that may be it.  Maybe it was earlier in the day that day.

(Declaration of John K. Paulson, ¶ 18, Exhibit N.)

            On February 7, 2023, Defendants’ filed the instant motion for leave to have their discovery motion heard, and to strike Plaintiff’s expert designation and exclude her experts.

            On February 9, 2023, the Court continued the jury trial for the instant matter to February 24, 2023 via oral stipulation based on the unavailability of trial courts at that time.  (See Minute Order, February 9, 2023.)  The Court stated that all discovery/motion cut-off remained closed, and further that the pre-trial motion cut-off remained in effect.  (See Minute Order, February 9, 2023.) 

            On February 24, 2023, the Court continued the jury trial for the instant matter to April 17, 2023 via oral stipulation based on Plaintiff’s Counsel’s representation that they were engaged in trial.  (See Minute Order, February 24, 2023.)

ANALYSIS

1. Leave for Expert Discovery Motion to be Heard

Trial is currently set for April 17, 2023.  (See Minute Order, February 24, 2023.)  The expert discovery cutoff was November 28, 2022.  (Code Civ. Proc., §§ 2024.020, subd. (a), 2024.030, 2016.060.)

In determining whether to hear a motion concerning discovery the court must consider the necessity of and reasons for the additional discovery, the diligence or lack thereof by the party seeking to reopen discovery in attempting to complete discovery prior to the cutoff, whether permitting the discovery will prevent the case from going forward on the trial date or will otherwise prejudice any party, and any past continuances of the trial date.  (See Code Civ. Proc., § 2024.050, subd. (b).)

Here, Defendants seek to have their motion heard to exclude Plaintiff’s experts, based Plaintiff’s purported abuse of the discovery process by failing to produce her experts for depositions and submitting a false expert declaration.   Defendants further explain that they have been diligent in their pursuit of expert discovery by timely requesting deposition dates for Plaintiff’s experts on multiple occasions.  Additionally, Defendants explain that they did not file the instant motion to exclude Plaintiff’s experts before the expert discovery motion cutoff because grounds for the instant motion had not yet been discovered or arose.  Defendants did not learn until January 10, 2023 that Plaintiff would not produce Mobin or Morris for deposition.  Further, Defendants did not discover that Patel and Smith may not have been retained as Plaintiff’s experts at the time of initial expert designation. 

In opposition, Plaintiff contends that Defendants’ motion should fail based on its untimeliness and further because Defendants’ have no definitive proof that Plaintiff’s experts were not designated as indicated in Plaintiff’s expert designation declaration.  However, Plaintiff fails to address Defendants’ arguments in regard to Plaintiff’s failure to produce experts Mobin and Morris for deposition before the expert discovery cutoff date, as well as her failure to de-designate them as experts.

Accordingly, the Court finds that Defendants have shown good cause for the Court to hear the instant motion to exclude Plaintiff’s experts, despite it being after the expert discovery motion cut-off.

2. Motion to Exclude Plaintiff’s Expert Witnesses

Under Code of Civil Procedure section 2034.300, “[O]n objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:  

a.               List that witness as an expert under Section 2034.260.  

b.               Submit an expert witness declaration. 

c.               Product reports and writings of expert witnesses under Section 2034.270. 

d.               Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”   

(Code Civ. Proc., §¿2034.300, subds. (a), (b).)   

a.     Dr. Fardad Mobin and Andrew Morris

Here Defendants served notice of Mobin and Morris’s depositions on Plaintiff on October 7, 2022, noticing their depositions for November 7 and 1, 2022, respectively.  (Declaration of John K. Paulson, ¶¶ 7-8, Exhibits E, F.)  Both Morris and Mobin failed to appear for their depositions.  (Declaration of John K. Paulson, ¶¶ 9-10, Exhibits G, H.)  As of the filing date of the motion Morris and Mobin have not been produced for deposition.

Consequently, the Court finds Plaintiff has unreasonably failed to make Mobin and Morris available for deposition, and their expert opinion must be excluded from evidence at trial. 

b.     John Smith and Dr. Rakeesh Patel

Defendants next argue that experts Smith and Patel should be excluded from trial based on Plaintiff’s purportedly false expert designation declaration which indicates that Smith and Patel were retained as Plaintiff’s expert witness as of June 14, 2022.  Under Code of Civil Procedure section 2034.260, subdivision (c)(3), an expert witness exchange shall also be accompanied by an expert witness declaration under penalty of perjury that includes, among other requirements “[a] representation that the expert has agreed to testify at the trial.”   Further, as is reflected in Bonds v. Roy (1999) 20 Cal.4th 140, 145-146, an expert witness declaration must strictly comply with all of the content requirements as outlined in the statute, and incompliance could warrant exclusion sanctions.

Defendants argue that Smith and Patel’s deposition testimonies indicate that they were not retained as expert witnesses until after the June 14, 2022 expert designation.  Thus, Defendants conclude that Plaintiff’s expert witness declaration, which states that Patel and Smith had agreed to serve as Plaintiff’s expert witnesses at trial, was false and incompliant with the requirements of Section 2034.260.  

In opposition, Plaintiff asserts that Patel and Smith both testified that they were unsure of their dates of retention; therefore, there is no conclusive evidence that the expert witness declaration was false.  The Court agrees.  Because Defendants have not advanced evidence that at the time of the initial expert witness exchange Patel and Smith had not agreed to testify at trial as Plaintiff’s expert witnesses, Defendants cannot demonstrate Plaintiff’s incompliance with Code of Civil Procedure section 2034.260.

Accordingly, the Court finds that Plaintiff’s expert witness declaration sufficiently complies with the requirements of Code of Civil Procedure section 2034.260 and does not warrant the exclusion of Patel and Smith’s as Plaintiff’s expert witnesses at trial.

CONCLUSION AND ORDER

The Court grants in part Defendants’ motion to exclude the expert testimony of Dr. Fardad Mobin and Andrew Morris, and denies in part Defendants’ motion to exclude the expert testimony of John Smith and Dr. Rakeesh Patel.  As such, the Court orders that Dr. Fardad Mobin and Andrew Morris are precluded from testifying at trial in this action. 

Defendants shall provide notice of the Court’s ruling and file a  proof of service of such.