Judge: Michael E. Whitaker, Case: 21STCV16735, Date: 2022-12-14 Tentative Ruling

Case Number: 21STCV16735    Hearing Date: December 14, 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

Plaintiff Kathi McWhorter (Plaintiff) moves to continue the trial, including all related dates and deadlines in this matter, to March 1, 2023.  In the alternative, Plaintiff moves for the Court to allow Plaintiff to amend the expert witness list to include all Plaintiff’s expert witnesses.  Defendants oppose the motion.

Preliminarily, the Court notes that there is not a trial set for the underlying case but rather a trial setting conference set for December 15, 2022.  As such there is not a trial date for Plaintiff to continue.  Thus, the Court denies Plaintiff’s motion to continue trial as not justiciable.

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], 

In ruling on a motion to augment an expert witness designation, the court must take into account “the extent to which the opposing party has relied on the list of expert witnesses . . . ,” and must determine that the opposing party “will not be prejudiced in maintaining that party’s action or defense on the merits.”    (Code Civ. Proc., § 2034.620, subd. (a)-(b).)  Additionally, the court must determine that “[t]he 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 witness . . . ,” or that “[t]he 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: [¶] Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. [¶] 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.”  (Code Civ. Proc., § 2034.620, subd. (c).)  Finally, the moving party must “mak[e] the expert available immediately for a deposition.”  (Code Civ. Proc., § 2034.620, subd. (d).)  The court may also condition leave to amend on any other term the court deems just.  (Ibid.)

In opposition, Defendants assert Plaintiff’s motion is procedurally deficient because Plaintiff failed to timely exchange expert witness information in the first instance.  Defendants set the date for demand of exchange of expert witness information to September 12, 2022, based on the then set trial date of November 1, 2022.  (Declaration of Mihir Desai, Exhibit A.)  Yet Plaintiff did not serve their expert witness designation until September 21, 2022.  (Declaration of Mihir Desai, ¶ 3, Exhibit C.)

When a party’s demand for exchange of expert witness information sets a date for exchange not in compliance with Code of Civil Procedure section 2034.230, that party fails to “make a complete and timely compliance with Section 2034.260,” even if the party makes its exchange on the noncompliant date.  (See Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1445-1446 [defendants lacked standing to move to exclude plaintiff’s experts from testifying at trial when defendant’s demand set a premature date for expert witness exchange, and defendants made their exchange on the date set forth in the demand].) 

Under Code of Civil Procedure section 2034.230, a demand for exchange of expert witness information “shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings.  The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.”  (Code Civ. Proc., § 2034.230, subd. (b).) 

Here, the Court agrees with Defendants’ assertion Plaintiff has not engaged in a timely exchange of expert witness information and, thus, lacks standing to bring this motion.  (See Code Civ. Proc., § 2034.610, subd. (a)(1); Staub, supra, 226 Cal.App.4th at p. 1446.) 

CONCLUSION AND ORDER

            Therefore, the Court denies Plaintiff’s motion to augment the expert witness list for lack of standing per Code of Civil Procedure section 2034.610, subdivision (a).  Based upon the plain language of the statute, the Court is without authority to grant the relief sought to any party, including Plaintiff, who has not engaged in a timely exchange of expert witness information. 

            Moreover, the Court denies without prejudice Plaintiff’s motion to continue the trial and related dates as nonjusticiable. 

Plaintiff shall provide notice of the Court’s rulings and file a proof of service of such.