Judge: Michelle C. Kim, Case: 20STCV31054, Date: 2023-05-03 Tentative Ruling

Case Number: 20STCV31054    Hearing Date: May 3, 2023    Dept: 31

                                      SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Maricel Magnaye-Pitcher (“Plaintiff”) filed this action against Defendants Danilo Solis Trinidad and Lydia Flores Trinidad (collectively, “Defendants”) for damages related to Plaintiff’s trip and fall on steps on Defendants’ property. 

At this time, Plaintiff moves to augment her list of experts by replacing one of Plaintiff’s originally retained experts, Dr. Cebula, with Plaintiff’s recently retained expert, Dr. Grossman.  Defendants oppose the motion.  Any reply to the motion was due on or before April 26, 2023.  On April 27, 2023, a reply was filed at 4:05 p.m. The Court will exercise its discretion to consider the late-filed reply.

2. Motion to Augment Expert Witness List

CCP § 2034.610 governs motions to augment expert witness lists. 

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do 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.

(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.

(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.

(Id.) 

CCP § 2034.620 states:

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.

(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.

(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.

Notably, granting or denial of relief in these cases lies within the court's sound discretion, and is subject to appellate review only for abuse of discretion.  (Bonds v. Roy (1999) 20 Cal.4th 140, 149.)

Here, Plaintiff provides that in her list of designated experts, he listed two experts.  After the designation of Plaintiff’s experts, Plaintiff provides that her medical expert, Dr. Cebula, refused to attend his noticed deposition or to further communicate with Plaintiff’s counsel regarding the case.  Plaintiff asserts he met and conferred with Defendants regarding the replacement of Dr. Cebula, but Defendants were unwilling to stipulate to such.  Plaintiff contends that he timely filed a designation of expert witnesses, but Dr. Cebula’s failure to testify at the deposition was beyond Plaintiff’s control.  Plaintiff argues that the replacement of Dr. Cebula with Dr. Grossman will not prejudice Defendant. 

            In opposition, Defendants argue that Plaintiff fails to show good cause for the requested relief because Plaintiff knew her expert was uncooperative since at least February 2, 2023, but Plaintiff delayed in seeking to augment her expert witness list.  Further, Defendants assert that discovery in this matter is now closed, and that Plaintiff offers no explanation or justification for her delay in filing the subject motion.

            In reply, Plaintiff argues Plaintiff did not act unreasonably. 

            As Defendants assert, discovery in this action, including expert discovery, is now closed.  On February 3, 2023, the Court signed and filed the parties’ stipulation to continue the then trial date of February 23, 2023, to April 25, 2023, with all discovery cutoff except for the deposition of Dr. Cebula.  At the Final Status Conference on April 12, 2023, the April 25, 2023 trial date was continued to May 31, 2023.  No discovery cutoff dates were extended with the trial date.  (Min. Order, April 12, 2023.)  Consequently, Plaintiff failed to file this motion in advance of the discovery cutoff dates as required by CCP § 2034.610(b). 

Moreover, Defendants submit evidence showing that Plaintiff’s counsel communicated in an email on February 2, 2023, that Dr. Cebula was not responding to Plaintiff’s counsel, so Plaintiff’s counsel intended to discharge him and had already contacted a replacement.  (Opp. Petrosyan Decl. ¶ 17, Exh. 13.)  Plaintiff was thus aware since at least February 2, 2023, that a replacement would be needed for Dr. Cebula, but Plaintiff offers no explanation for why Plaintiff waited until April 7, 2023, to file the instant motion. The Court also notes that on February 2, 2023, Defense counsel alerted Plaintiff’s counsel of the need to “bring a motion to substitute.”  (Opp. Petrosyan Decl. ¶ 19, Exh. 14.)   Accordingly, the Court cannot determine that Plaintiff promptly sought leave to augment her expert witness list in light of this evidence.  Furthermore, Plaintiff does not provide any evidence showing that she served a copy of the proposed witness information concerning Dr. Grossman on Defendants as required by CCP § 2034.620(c)(2)(B) for the motion to be granted.

            Based on the foregoing, Plaintiff’s motion is denied. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 3^rd day of May 2023