Motion to Exclude Experts and for Terminating, Evidentiary, Issue and Monetary Sanctions filed by Plaintiffs Albert Naranjo and Antonia Mendez 

TENTATIVE

Plaintiffs’ Motion to Exclude Defendants’ Expert and for Terminating, Evidentiary, Issue and Monetary Sanctions is DENIED. The motion to exclude the defense expert is DENIED without prejudice.

Legal Standard

Failure to provide an expert witness declaration or failure to adequately disclose the expert's expected testimony may result in the exclusion of expert opinion. (Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 139.) Section 2034.300 “empowers the court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to produce expert reports and writings as required by section 2034.270. (§ 2034.300, subd. (c).) ... [A] party who fails to [comply] before the specified date does so at its own risk.” (Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 952.) 

C.C.P. 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), on 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.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

 (d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).

Failure to comply with expert designation rules may be found to be “unreasonable” when a party's conduct gives the appearance of gamesmanship. (Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447, citing Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504.) The operative inquiry is whether the conduct being evaluated will compromise these evident purposes of the discovery statutes: “to assist the parties and the trier of fact in ascertaining the truth; to encourage settlement by educating the parties as to the strengths of their claims and defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against surprise.” (Id. at p. 1504.) 

Pursuant to Code of Civil Procedure section 2023.030, the Court may impose the types of sanctions requested depending on the misconduct that occurred. In general, a nonmonetary sanction is only appropriate after a party fails to obey an order compelling discovery. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.) However, such relief may be imposed without a prior order compelling discovery if obtaining such an order would be futile or the misconduct in connection with the failure to produce evidence in discovery is “sufficiently egregious.” (Ibid.) 

Pursuant to Code of Civil Procedure section 2023.030, the Court may impose sanctions for the misuse of the discovery process:

“(a) The court may impose monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

(b) The court may impose an issue sanction ordering that designated facts shall be taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.

(c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated matters in evidence.” (Code Civ. Proc., § 2023.030.)

A motion for issue or evidentiary sanctions must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(7).)

“The court may . . . impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or defenses.” (CCP § 2023.030(b).) “Discovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party.” (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.)  

“The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. Discovery sanctions should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.  If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (internal citation omitted).) 

Discussion

C.C.P. § 2034.300

Plaintiffs move to exclude defense expert witness Russel Nelson M.D. from testifying at trial. They argue that after Defendants repeatedly cancelled their experts’ depositions and refused to provide dates before trial, plaintiff was prepared to take the deposition of defendants’ main witness Dr. Nelson. Plaintiffs further argue that Dr. Nelson appeared and was ready to testify on July 21, 2022, but defense counsel Richard Semon improperly advised him not to testify and leave the deposition. Thus, Plaintiffs argue Dr. Nelson’s testimony should be excluded at trial.

The court finds that any ruling excluding Defendants’ expert witnesses are evidentiary in nature and must be addressed by the trial court. C.C.P. § 2034.300 specifically and appropriately designates that the trial court should hear motions pursuant to this section. Therefore, the motion to exclude the testimony of expert witness Russel Nelson M.D. is DENIED without prejudice to filing this motion in the trial court.

              Terminating, Evidentiary, and/or Monetary Sanctions

Alternatively, Plaintiffs contend that in light of Defendants’ pattern of discovery abuse, Plaintiff requests issuance of terminating sanction, or evidentiary sanctions precluding Dr. Nelson from testifying, and monetary sanctions against the defendants and their attorneys.

In general, a nonmonetary sanction is only appropriate after a party fails to obey an order compelling discovery. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.) However, such relief may be imposed without a prior order compelling discovery if obtaining such an order would be futile or the misconduct in connection with the failure to produce evidence in discovery is “sufficiently egregious.” (Ibid.) 

Plaintiffs have not argued that Defendants have failed to obey an order compelling discovery. Moreover, the Court notes that Plaintiffs have not moved to compel the deposition. Therefore, under the general rule nonmonetary sanctions are inappropriate.  Moreover, Plaintiffs have not filed a separate statement, which is a separate ground to deny this motion. A motion for issue or evidentiary sanctions must be accompanied by a separate statement. (Cal. Rules of Court, rule 3.1345(a)(7).) In addition, defendants point out that they have not produced Dr. Nelson for deposition because Plaintiffs have not compensated him. Thus, there is no basis for sanctions of any kind.

Defendants’ request for sanctions is also denied. Defendants concede that this is not a motion to compel further, and thus an IDC is not required.

Conclusion

Based on the foregoing, Plaintiffs’ Motion to Exclude Defendants’ Expert and for Terminating, Evidentiary, Issue and Monetary Sanctions is DENIED. The motion to exclude the defense expert is DENIED without prejudice.

Moving party is ordered to give notice.