I. Background 

Plaintiff Abila Garcia (“Plaintiff”) filed this action against defendants Ambiance Medical Transportation, Inc., et al. for damages arising from allegations that a vehicle lift/ramp remained in a dangerous position, such that Plaintiff tripped and fell over the vehicle lift/ramp.   

On November 8, 2023, the Court granted Plaintiff’s ex parte application to continue the trial date to April 17, 2024, and provided that only discovery related to the depositions of the COR/PMK and related request for production of documents would track with the new trial date. Absent agreement between the parties, the re-opening of any other discovery deadlines, including expert discovery, will only be decided upon notice motion. (Min. Order, Nov. 8, 2023.) 

Plaintiff, thus, now moves for leave to submit tardy expert witness information and to re-open expert discovery.   

Any opposition to the motion was due on or before February 9, 2024; no opposition has been received.   

II. Motion for Leave to Submit Tardy Expert Witness Information   

A party who fails to submit expert witness information on the date specified in a demand for that exchange may seek leave to submit that information on a later date.  (CCP § 2034.710(a).)  Absent “exceptional circumstances,” the motion for permission to file a tardy list must be made early enough to permit deposing the experts involved before the 15–day cut-off on expert witness depositions.  (CCP §§ 2034.710(b), 2024.030.)   

The court may permit tardy submission of expert witness lists and information if the following conditions are satisfied: 

(a) The court has taken into account the extent to which the opposing party has relied on the absence of a 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 that the moving party did all of the following: 

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect. 

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. 

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action. 

(d) The order 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. 

(CCP § 2034.720.)   

Further, the motion must be accompanied by a meet and confer declaration.  (CCP § 2034.710(c).)   

Here, Plaintiff provides that the Welltower Defendants served a Demand for Exchange of Expert Witness Information on September 15, 2023, with the exchange date set as October 12, 2023 based on the December 1, 2023 trial date. Defense counsel emailed on October 25, 2023 regarding Plaintiff failing to serve her expert designations, and Plaintiff’s counsel responded that he was not sure what happened with the expert witness exchange, but that Plaintiff would seek relief to allow for the designation. Plaintiff’s counsel declares that the expert exchange demand did not make it into his calendaring system and was therefore inadvertently overlooked. On November 8, 2023, Plaintiff provides she served her Designation of Expert Witnesses, but defense counsel requested it be withdrawn on the grounds that the designation was late. Plaintiff therefore moves for late designation and to re-open expert discovery.  

Here, Plaintiff asserts all the conditions of CCP § 2034.720 have been met. No parties oppose the motion, and thus, there is no showing that any defendant relied on Plaintiff’s absence of an expert witness list to any extent.  Further, Plaintiff’s counsel’s declaration establishes the failure to submit the information was the result of mistake, surprise, inadvertence and excusable neglect, and Plaintiff has promptly served a copy of the proposed expert witness information after realizing the mistake.   

Plaintiff’s motion to submit tardy expert designation and to re-open expert discovery (to follow the April 17, 2024 Trial date) is unopposed and granted subject to Plaintiff making her expert immediately available to be deposed.   

Moving party is ordered to give notice.   

PLEASE TAKE NOTICE: 

Dated this 23rd day of February 2023