Judge: Stephen I. Goorvitch, Case: 19STCV15381, Date: 2023-10-31 Tentative Ruling

Case Number: 19STCV15381    Hearing Date: October 31, 2023    Dept: 39

Lakeshore Investment LLC v. Now Solutions Inc., et al.,

Case No. 19STCV15381

Motion to Permit Late Expert Designations

Plaintiff Lakeshore Investment LLC (“Plaintiff”) filed this action on May 2, 2019.  Defendants waived jury by not posting fees.  Defendants were required to post jury fees on or before the case management conference, per Code of Civil Procedure section 631(c).  Defendants failed to do so.  The Court (Feffer, J.) conducted a case management conference on October 2, 2019, and expressly reminded Defendants’ counsel to post jury fees.  Judge Feffer ordered: “Jury fees are to be posted by 10/4/19 or jury is waived.”  (See Case Management Order, dated October 2, 2019; see also Court’s Minute Order, dated October 2, 2019.)  Defendant’s counsel, Chad Biggins, Esq., was present at the case management conference.  Defendants’ counsel was present at the case management conference.  (See Court’s Minute Order, dated October 2, 2019.) 

The Court held another case management conference on January 14, 2022.  The Court ordered: “Jury fees shall be posited within 10 days or the parties will waive jury.”  (See Court’s Case Management Order, dated January 14, 2022; see also Court’s Minute Order, dated January 14, 2022.)  Defendant’s counsel, Chad Biggins, Esq., was present at the case management conference.  (See Court’s Minute Order, dated January 14, 2022.)  Plaintiff’s counsel also provided notice: “Jury fee must be posited by January 24, 2022, or trial by jury is deemed waived.”  (See Notice of Ruling, filed on January 18, 2022.)  No jury fees were posted until February 22, 2023, before the then-trial date of March 1, 2023.  Therefore, the Court found that jury had been waived and denied Defendants’ motion for relief from waiver.  (See Court’s Minute Order, dated April 13, 2023.)  The Court rejected Mr. Biggins’s representation: “I inadvertently failed to post fees and never was informed nor realized this until receipt of the brief filed by Plaintiff on or about 2-17-2023.” (Ibid.) 

Now, Defendants seek to designate an untimely expert.  Plaintiff’s counsel made an expert witness demand on October 2, 2019.  Per Code of Civil Procedure section 2034.710, “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 on a later date.”  (Code Civ. Proc., § 2034.710, subd. (a).)  The party seeking leave to serve an untimely expert witness designation must do so prior to the cut-off date for expert witness depositions unless the Court concludes that “exceptional circumstances” exist.  (Code Civ. Proc., § 2034.710, subd. (b).)  The Court must grant leave to submit an untimely expert witness designation if: “(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 . . . 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 . . . , 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.)

Per Code of Civil Procedure section 2034.230, the deadline was August 10, 2020, based upon a trial date of September 28, 2020.  However, Defendants were unrepresented between July 21, 2020, and September 16, 2020, which Defendants cite as a reason why they failed to designate experts before the deadline.  The Court (Feffer, J.) issued a minute order stating that she granted Mr. Biggins’s motion to be relieved, but she never actually signed the order on Form MC-053.  Plaintiff’s counsel argues that Mr. Biggins continued to represent Defendants during this time period, relying on an email of September 8, 2020.  The email states that he was again representing Defendants “but the order was never signed so I was never officially out.”  (Declaration of Jonathan T. Nguyen, Exh. #2.)  This does not establish that he was doing any work on Defendants’ behalf between July 21, 2020, and September 8, 2020.  Defendants’ current counsel substituted into the case on September 16, 2023, and filed this motion a few weeks later.    

Based upon the foregoing, the Court finds good cause to grant the motion and shall permit Defendants to notice an untimely expert witness on the following conditions: (1) Defendants will stipulate to Plaintiff’s counsel designating his own expert in response if he wishes to call one in his case-in-chief; (2) Defendants will not object to Plaintiff calling an undesignated expert in rebuttal per Code of Civil Procedure section 2034.310(b); and (3) Defendants will stipulate to a trial continuance Plaintiff’s counsel requires additional time to prepare for trial.    

Defendants’ counsel shall provide notice and file proof of such with the Court.