Judge: Michael E. Whitaker, Case: 19STCV13724, Date: 2023-07-10 Tentative Ruling

Case Number: 19STCV13724    Hearing Date: July 10, 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

Plaintiff Yassine Memmi sued defendants Jessica Yadegar, Saeed Yadegar, and Jasmine Yadegar (collectively, “Defendants”) based on a motor vehicle collision.  Trial is set for July 25, 2023. 

Plaintiff moves for leave to have the discovery motion heard, augment the expert disclosure, and reopen expert discovery.  Defendants oppose the motion.  Plaintiff has replied.

LEGAL STANDARD

Augment Expert Disclosure

Under 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 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.  Pursuant to Code of Civil Procedure section 2034.610, subdivision (b), a motion under subdivision (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.  Additionally, the motion shall be accompanied by a meet and confer declaration.  (Code Civ. Proc., § 2034.610, subd. (c).) 

Code of Civil Procedure section 2034.620 provides that the court shall grant leave to augment or amend an expert witness list or declaration 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, 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. 

Under Code of Civil Procedure section 2034.620, subdivision (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. 

Reopen Discovery

Except as otherwise provided, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day before the date initially set for trial of the action.  (Code Civ. Proc., § 2024.020, subd. (a).)  On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.  This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.  (Code Civ. Proc., § 2024.050, subd. (a).)   

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”  (Code Civ. Proc., § 2024.050, subd. (b).) 

DISCUSSION

            Plaintiff requests leave to augment the expert witness designation and reopen expert discovery on the grounds that (1) California law strongly favors resolution of matters based on the merits after full discovery has been completed; (2) the purpose of discovery is to allow the parties to prepare for trial, narrow issues, promote judicial economy and to fairly allow the parties to evaluate their respective cases as they prepare; (3) after the initial expert disclosure, Plaintiff underwent a surgical procedure for his injuries related to the subject incident, and the treating surgeon, Vincent Valdez, M.D. (“Valdez”) was not listed on Plaintiff’s expert disclosure as a non-retained expert as a result; and (4) Defendant will not be prejudiced by Plaintiff augmenting the expert designation and the reopening of expert discovery as Plaintiff has provided the necessary records and offered to allow any additional discovery into the matter that Defendants wish to conduct. 

            Plaintiff contends that the meet and confer requirement pursuant to Code of Civil Procedure section 2024.050 has been satisfied.  Moreover, Plaintiff requests a limited reopening of discovery which can be completed without disturbing the July 25, 2023 trial date.  Thus, no party will be prejudiced by augmenting expert disclosure and reopening expert discovery to allow the parties to take Valdez’s deposition.

            In opposition, Defendants contend that Plaintiff fails to satisfy the requirements pursuant to Code of Civil Procedure section 2024.050 (reopen discovery), or Code of Civil Procedure section 2034.620 (motion to augment), which he failed to address at all.  Defendants argue that Plaintiff failed to diligently pursue this motion and that augmenting the expert designation is not necessary because Plaintiff was trial ready on February 9, 2023.  Defendants posit that although Plaintiff underwent surgery by Valdez in mid-February 2023, the surgery was likely recommended and approved before February 2023, but Plaintiff did not seek court relief.  Further, Defendant states that Plaintiff could have sought court relief sooner because significant time has passed between trial dates.  Defendants state that since Plaintiff’s motion is set to be heard only 15 days before trial, allowing an additional expert at this point would interfere with the trial date, and prejudice Defendants as they have been preparing for trial for months, under the guise that Valdez would not be called as an expert.  Finally, Defendants request sanctions in the amount of $720.00 as there was no substantial justification in waiting months to bring this instant motion.

            In reply, Plaintiff states that at the time he answered ready for trial in February 2023, Plaintiff had not had surgery with Valdez.  Further, at that time, Plaintiff had yet to treat with Valdez.  But the circumstances are now different, Valdez has completed Plaintiff’s surgery.   In addition, Plaintiff claims that failing to allow him to augment the designation will force both parties to proceed to trial in an alternate reality where Plaintiff has not had the surgery or the jury cannot hear from his treating surgeon. 

            Second, as to diligence, Plaintiff contends that motion hearing dates are difficult to secure  and the motion hearing date was reserved at the end of March, when meet and confer efforts regarding the relief Plaintiff seeks had failed.  However, the Court Reservation System indicates that the motion hearing was reserved on April 10, 2023, not at the end of March 2023.  Further,  the Court notes that the motion was not filed and served until June 9, 2023.  Had Plaintiff filed and served the motion at or near the time the hearing was reserved (April 10, 2023), Plaintiff could have sought to advance the hearing to an earlier date, eliminating or limiting any prejudice to Defendants. 

Augment Expert Disclosure

Plaintiff does not explicitly address the requirements for a motion to augment expert designation under Code of Civil Procedure section 2034.620.  The Court finds that Plaintiff fails to satisfy his burden in showing that there is good cause in granting the motion.  The motion was not made at a sufficient time in advance of the time limit for the completion of discovery as required under Code of Civil Procedure section 2034.610, subdivision (a), nor is there a sufficient showing of exceptional circumstances in which the court may permit the motion to be made at a later time under Code of Civil Procedure section 2034.610, subdivision (b).  Plaintiff claims that his surgery constitutes a change in circumstances which would permit him to make the motion at a later time.  Here, Plaintiff was recommended surgery as Plaintiff claims when he answered ready for trial in February, the trial proceeding would have been about surgery recommendation.  (Reply p. 2.)  Although the surgery was a new development, Plaintiff fails to show that his surgery was unexpected which would rise to the level of an exceptional circumstance.  As Defendants point out, it is likely that the surgery was recommended and approved prior to February 2023.  Plaintiff fails to sufficiently address this argument in his reply. 

Despite the failure to timely make this motion or the existence of an exceptional circumstance, the Court considers the requirements under Code of Civil Procedure section 2034.620.  The Court notes that Plaintiff has satisfied the requirement in providing a meet and confer declaration pursuant to Code of Civil Procedure section 2034.610, subdivision (c).  (Hultin Decl. ¶ 5, Exhibit. 1.) 

Defendants assert that they relied on the list of expert witnesses and the fact that Valdez would not be called since Plaintiff waited so long to seek court relief.  Defendants point out that the hearing on this motion is set to be heard only 15 days before trial, which would interfere with the trial date and result in prejudice.  Defendants state that all other experts finalized their opinions and have been deposed.  Although Defendants state that they initially noticed Valdez’s deposition, that notice was in error and has been withdrawn.  Defendants claim that Valdez was not deposed because Plaintiff waited so long to seek court relief.  The Court finds this sufficient to constitute prejudice to Defendants.  Additionally, Plaintiff fails to show that it would not in the exercise of reasonable diligence have determined to call Valdez as an expert witness.  Plaintiff also fails to show that the failure to call Valdez was the result of mistake, inadvertence, surprise, or excusable neglect.  As discussed above, it is probable that Plaintiff’s surgery was recommended and approved prior to February 2023 when Plaintiff claimed to be ready for trial.  Finally, there is no showing that Plaintiff promptly served a copy of the proposed expert witness information as required under Code of Civil Procedure section 2034.620 subdivision (c)(2)(B).  Thus, the Court finds any prejudice that Plaintiff would face in not having Valdez as an expert witness to be outweighed by the prejudice to Defendants.  Accordingly, the Court finds there is not good cause to grant the motion. 

Reopen Discovery

            Although the reopening of discovery is limited to adding Valdez to the list of non-retained experts and allowing his deposition to be taken, the Court does not find this can be reasonably accomplished prior to the trial date currently set for July 25, 2023.  As discussed above, Plaintiff has not shown the diligence required in hearing this discovery motion and finds that permitting the discovery will interfere with the trial calendar and prejudice Defendants.  Thus, the Court denies Plaintiff’s request to reopen discovery.

CONCLUSION AND ORDER

In light of the foregoing, the Court DENIES Plaintiff’s motion to augment Plaintiff’s expert disclosure and reopen expert discovery.

The Clerk of the Court shall provide notice of the Court’s ruling.