Judge: Michael E. Whitaker, Case: 23SMCV05150, Date: 2025-04-01 Tentative Ruling

Case Number: 23SMCV05150    Hearing Date: April 1, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from an alleged vehicle collision. 

On October 31, 2023, Plaintiff Brianna Walker (“Plaintiff”) brought suit against Defendant Fady Kodsy (“Defendant”) alleging two causes of action for (1) motor vehicle – negligence and (2) negligence. 

Plaintiff now moves, pursuant to Code of Civil Procedure section 2034.300, to strike Defendant’s March 7, 2025 supplemental expert disclosure of Dr. Rajan Gupta.  Defendant opposes the motion.

ANALYSIS

            Code of Civil Procedure section 2034.300 provides, “Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), an 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.” 

            Code of Civil procedure section 2034.260 provides, “All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange.”  (Code Civ. Proc., § 2034.260, subd. (a).)

            In support of the motion, Plaintiff has provided the Declaration of Kenneth R. Shy, which provides:

2. Trial on this matter is April 21, 2025. On February 5, 2025, Defendant’s sent out a demand for exchange of expert witness information. The demand date and deadline clearly outlined in their demand for exchange of expert witness information was March 3, 2025. (Exhibit “1.”)

3. On March 3, 2025, Plaintiff’s timely designated expert witnesses, including a medical expert witness (Designation attached as Exhibit “2.”)

4. Surprisingly, on that date, the Defendant’s designated one expert witness, an accident reconstruction expert, Philip S. Wang. (Designation attached as Exhibit “3”) Ever since September 13, 2023, Defendant’s counsel has been aware that Brianna Walker had incurred $53,535.00 in medical billings as a result of this automobile collision, when the demand was sent to AAA. (Exhibit “4.”)

5. On March 7, 2025, Defendant’s served a supplemental declaration, designating an orthopedic surgeon Dr. Rajan Gupta. This supplemental designation is improper. (Exhibit “6.”)

(Shy Decl. ¶¶ 2-5.)

            Therefore, Plaintiff has provided evidence that Defendant failed to simultaneously disclose its expert witness regarding Plaintiff’s damages on the March 3, 2025 deadline, as required by Code of Civil Procedure section 2034.260.

            In opposition, Defendant points to Code of Civil Procedure section 2034.280, which provides:

Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.

(Code Civ. Proc., § 2034.280, subd. (a).)

            Plaintiff points out that Section 2034.280, governing supplemental expert disclosures, may only be used to add experts on new subjects raised by the opposing party, but not to include experts that should have been initially disclosed.  In support, Plaintiff cites to Fairfax v. Lords (2006) 138 Cal.App.4th 1019 (hereafter Fairfax).  Fairfax was a medical malpractice action in which the defendant indicated in initial disclosures that he was not designating any retained experts, but reserved the right to designate experts in rebuttal to plaintiff’s designations.  (Id. at p. 1022.)  After receiving plaintiff’s expert designations to testify as to the “standard of care” defendant attempted to designate two “rebuttal” witnesses.  (Id. at p.1026.)  In excluding defendant’s “rebuttal” witnesses from trial, the appellate court explained because the issue was one both sides could anticipate will be disputed at trial, the defendant cannot merely “reserve its right” to designate experts in the initial exchange, wait to see what experts the plaintiff designates, and then name its own experts as “rebuttal” witnesses.  (Id. at p. 1021.) 

            Defendant relies on Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485 (hereafter Du-All), a personal injury case where the court found the trial court abused its discretion in excluding the rebuttal damages expert witness.  In so holding, the Du-All court distinguished Fairfax on the grounds that (1) the defendant in Fairfax did not initially designate any expert witnesses; (2) there was actual prejudice in Fairfax, unlike Du-All, where neither party had yet deposed any expert witnesses at the time of the supplemental disclosure; and (3) the Fairfax defendant’s stated reason for not initially designating “was to delay his own list of ‘expected’ witnesses until after he had seen the list put forth by [the plaintiff].”  (Id. at p. 501.)  The court of appeal further noted that the only published case that applied Fairfax to exclude expert testimony did so in light of the party’s repeated violations of court orders excluding hearsay and opinion testimony.  (Ibid.) 

            The Court finds Du-All more closely analogous to the present case.  Here, there is no history of discovery gamesmanship.  Rather, Defendant apparently did not initially believe a damages expert would be necessary to prove up the $53,535 incurred in medical billing, but upon seeing Plaintiff’s medical damages expert designation, Defendant timely disclosed its own rebuttal medical damages expert.  That complies with both the spirit and purpose of the statute.

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s Motion to Strike Defendant’s supplemental medical damages expert designation.    

Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  April 1, 2025                                                          ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court