Judge: Salvatore Sirna, Case: 23PSCV00703, Date: 2024-09-17 Tentative Ruling

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Case Number: 23PSCV00703    Hearing Date: September 17, 2024    Dept: G

Plaintiff Janelle Josie Venegas’ Motion for Leave to File Designate Late Expert Designation

Respondent: Defendant Yolanda Catalina Cuevas

TENTATIVE RULING

Plaintiff Janelle Josie Venegas’ Motion for Leave to File Designate Late Expert Designation is DENIED.

BACKGROUND

This is a personal injury action arising from a motor vehicle collision. In April 2021, Plaintiff Janelle Josie Venegas was driving eastbound on Temple Avenue in West Covina when Defendant Yolanda Catalina Cuevas collided with Venegas’s vehicle at the intersection of Temple Avenue and Azusa Avenue. Venegas alleges Cuevas was operating a vehicle owned by Defendant Felipe Cuevas. As a result of the collision, Venegas allegedly suffered severe bodily injury.

On March 9, 2023, Venegas filed a complaint against the Cuevases and Does 1-10, alleging causes of action for (1) motor vehicle negligence and (2) general negligence.

On April 11, 2023, the Cuevases filed a cross-complaint against Venegas and Roes 1-10, alleging causes of action for (1) implied and total indemnity and (2) declaratory relief and apportionment of fault.

On May 10, 2023, Venegas dismissed Felipe Cuevas from the present action.

On September 12, 2024, Venegas filed the present motion. A hearing on the present motion is set for September 17, 2024, along with a jury trial on September 24, 2024.

ANALYSIS

Venegas moves for leave to submit an untimely expert designation. For the following reasons, the court DENIES Venegas’ motion.

Legal Standard

Pursuant to Code of Civil Procedure section 2034.710, subdivision (a), “[o]n 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 on a later date.” Such a 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, subdivision (b), emphasis added.)

In granting leave to submit tardy expert witness information, the court must “taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses,” determine “that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits,” and find that the moving party “(1)[f]ailed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect[;] (2) [s]ought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect[; and] (3) [p]romptly 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.” (Code Civ. Proc., § 2034.720.)

Discussion

In this case, the cutoff for expert discovery occurred on September 9, 2024, which is three (3) days before Venegas filed the present motion. (Code Civ. Proc., § 2024.030.) Because Venegas’ motion is untimely, the court must find “exceptional circumstances” to permit its consideration.

Here, the justification provided is that Venegas’s counsel was in trial August 5, 2024, and that counsel’s office failed to diary the expert designation deadline for the present case. (Soong Decl., ¶ 3.) The court notes, however, that being in trial and failing to calendar a deadline do not  constitute exceptional circumstances justifying the relief sought. And even if they did, counsel for Venegas failed to explain how a trial and calendaring error in early August resulted in counsel failing to file the present motion in a timely manner before the cutoff of discovery on September 9, 2024.

Notably, the declaration of Venegas’ counsel fails to mention when Venegas’ counsel first discovered the error. Thus, the court finds Venegas’ counsel failed to justify the untimely filing of the present motion. To the extent Venegas also attempts to rely on Code of Civil Procedure section 473, subdivision (b), the court finds this provision is inapplicable here. (See Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274-275.)

Accordingly, the court DENIES Venegas’ motion.

CONCLUSION

Based on the foregoing, Venegas’ motion for leave to file a late expert designation is DENIED.