Judge: Salvatore Sirna, Case: 21PSCV00633, Date: 2024-11-06 Tentative Ruling

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Case Number: 21PSCV00633    Hearing Date: November 6, 2024    Dept: G

Plaintiff Karl Schroeder’s Motion to Reopen Expert Witness Discovery

Respondent: Defendants Manohar Singh and San Dimas Animal Hospital

TENTATIVE RULING

Plaintiff Karl Schroeder’s Motion to Reopen Expert Witness Discovery is DENIED.

BACKGROUND

This is a negligence action arising from the treatment of a dog. In February 2020, Plaintiff Karl Schroeder brought a dog named Allie to Defendants Manohar Singh and San Dimas Animal Hospital for diagnosis and treatment of a minor limp. Schroeder alleges Singh and San Dimas Animal Hospital’s examination resulted in further injury to Allie.

On August 5, 2021, Schroeder filed a complaint against Singh, San Dimas Animal Hospital, and Does 1-25, alleging a single cause of action for general negligence.

On October 14, 2024, Schroeder filed the present motion. A hearing on the present motion is set for November 6, 2024, along with a final status conference on January 21, 2025, and a non-jury trial on January 27, 2025.

ANALYSIS

Schroeder moves for an order reopening expert witness discovery on the grounds that Schroeder’s counsel inadvertently failed to serve Schroeder’s expert witness designation by the designated exchange date. For the following reasons, the court DENIES Schroeder’s motion.

Legal Standard

“On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information at a later date.” (Code Civ. Proc., § 2034.710, subd. (a).) The motion “shall be made 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.” (Code Civ. Proc., § 2034.710, subd. (b).) The motion must include a meet-and-confer declaration. (Code Civ. Proc., § 2034.710, subd. (c).)

Pursuant to Code of Civil Procedure section 2034.720, “[t]he court shall grant leave to submit tardy expert witness information 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 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.” (Code Civ. Proc., § 2034.720, subd. (a)-(d).)

Discussion

In this case, Singh and San Dimas Animal Hospital’s counsel served Schroeder’s counsel with a demand for exchange of expert witness information on March 18, 2024, with an exchange date of April 9, 2024. (Miller Decl., ¶ 6; Wallace Decl., ¶ 3.) While Singh and San Dimas Animal Hospital’s counsel served their statement on April 9, Schroeder’s counsel failed to do so. (Miller Decl., ¶ 6; Wallace Decl., ¶ 3-4.) Schroeder’s counsel states the failure to do so was a result of counsel’s inadvertence as counsel was dealing with multiple issues including health problems and personnel changes. (Miller Decl., ¶ 5.)

The declaration of Plaintiff’s Counsel, however, fails to clarify how these issues resulted in counsel inadvertently missing important discovery dates. Counsel’s declaration also fails to state when counsel first discovered the error and, by counsel’s own admission, counsel failed to serve such disclosures before filing the present motion as required by Code of Civil Procedure section 2034.720, subdivision (c)(3). (Miller Decl., ¶ 8.)

Accordingly, the court finds Plaintiff’s counsel failed to meet the statutory requirements for relief pursuant Code of Civil Procedure section 2034.720.  As such, Plaintiff’s motion is  DENIED.

CONCLUSION

Based on the foregoing, Plaintiff Schroeder’s motion to reopen expert witness discovery is DENIED.