Judge: Stephen P. Pfahler, Case: 19STCV01820, Date: 2022-10-14 Tentative Ruling

Case Number: 19STCV01820    Hearing Date: October 14, 2022    Dept: F49

Dept. F-49

Date: 10-14-22

Case #19STCV01820

Trial Date: 11-7-22 c/f 4-25-22 c/f 3-7-22 c/f 9-27-21 c/f 11-18-20 c/f 7-17-20

AUGMENT EXPERT WITNESS LIST

MOVING PARTY: Plaintiff, Edna Beteta

RESPONDING PARTY: Defendant, Gabriel Hernandez dba Prime Construction Services

RELIEF REQUESTED

Motion for Relief of Waiver of Objections

SUMMARY OF ACTION

On March 13, 2017, Plaintiff Edna Beteta was in proximity of a construction site owned, operated and/or managed by Defendants LNR Partners California Manager, LLC, Prime Construction and U.S. Fire Protection, Inc., when a falling metal plate struck Plaintiff on the head.

On January 18, 2019, Plaintiff filed a complaint for premises liability, and negligence. On February 22, 2019 and March 12, 2019, LNR Partners California Manager, LLC answer then filed a cross-complaint against Prime Construction and U.S. Fire Protection, Inc. U.S. Fire Protection, Inc. and Gabriel Hernandez dba Prime Construction Services answered the complaint on April 15, 2019 and September 19, 2019. On August 22, 2019, plaintiff substituted in WBCMT 2007-C31 Nordhoff Street Limited Partnership for Doe 1. On September 24, 2019, WBCMT 2007-C31 Nordhoff Street Limited Partnership answered the complaint and filed a cross-complaint against Prime Construction and U.S. Fire Protection, Inc.

On September 30, 2019, Plaintiff dismissed LNR Partners, LLC.

On October 1, 2020, the action was transferred from Department 29 to Department 49.

On September 17, 2020, Plaintiff substituted in G&E Real Estate Management, Inc. for Doe 2. On November 6, 2020, G&E Real Estate Management, Inc. answered the complaint and filed a cross-complaint against Prime Construction and U.S. Fire Protection, Inc.

On July 2, 2021, the court denied the motions for summary judgment of Defendants WBCMT 2007-C31 Nordhoff Street Limited Partnership, and U.S. Fire Protection, Inc. On July 26, 2021, the court entered the stipulation to continue the trial date and concurrently extended the motion and discovery dates to the new trial date.

On September 16, 2021, the court granted Plaintiff’s motion for leave to file a first amended complaint in order to add a res ipsa loquitur cause of action. The amended complaint was filed on September 28, 2021. The parties answered on September 30, October 27, 2021, and November 2, 2021, respectively.

RULING: Denied

Plaintiff Edna Beteta moves for leave to augment and amend the expert witness list in order to designate Enrique Vega, vocational rehabilitation expert. Vega will testify in support of the lost earning testimony claim.

Plaintiff seeks leave on grounds that upon new counsel substituting into the case, new counsel determined the necessity for vocational rehabilitation expert testimony as part of the lost earnings claim. Plaintiff maintains lost earnings capacity has been part of the action, and discovery covered on the subject. Counsel notified opposing counsel of the intent to seek a supplemental designation, but following objections, the instant motion was necessitated. Plaintiff maintains the report of Vega has now been provided to all parties, and Vega will be made available for deposition. Plaintiff challenges any claims of prejudice.

Defendant Gabriel Hernandez dba Prime Construction Services (Prime) in opposition challenges the motion on grounds that Vega is not being produced as a counter witness, and prejudice due to the late designation.

Plaintiff in reply reiterates the lack of prejudice, due both the continuance of the trial date, and making the witness available for deposition. Plaintiff also maintains the expert witness exchange deadline was extended as a result of the stipulation. The deposition of Vega is currently set for November 1, 2022, by agreement of the other defendants. Plaintiff denies any attempted substitution of witnesses.

“After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses …” (Code Civ. Proc., § 2034.210.) “Any party may make a demand for an exchange of information concerning expert trial witnesses without leave of court. A party shall make this demand no later than the 10th day after the initial trial date has been set, or 70 days before that trial date, whichever is closer to the trial date.” (Code Civ. Proc., § 2034.220.)

(a) A demand for an exchange of information concerning expert trial witnesses shall be in writing and shall identify, below the title of the case, the party making the demand. The demand shall state that it is being made under this chapter.

(b) The demand shall specify the date for the exchange of lists of expert trial witnesses, expert witness declarations, and any demanded production of writings. The specified date of exchange shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.

Code Civ. Proc., § 2034.230

While the court shows the initial trial date as July 17, 2020, with numerous continuances, the court accepts the parties apparent last expert cutoff derived from the April 25, 2022 trial date. [Declaration of Michelle McDonald, ¶¶ 4-5.] The court additionally acknowledges the stipulation to continue the April 25, 2022 trial. The March 16, 2022 stipulation in fact advanced expert and motion cutoff deadlines to the new trial date. (See Code Civ. Proc., § 2024.050, subd. (a).)

As presented in the reply, Plaintiff implicitly argues the stipulation and extension of the deadlines also reset the statutory expert designation deadlines. While the other participating seemingly agree as demonstrated by the agreed upon November 1, 20222 deposition date for Vega, Prime raises a valid statutory challenge. Notwithstanding the argument in reply regarding an extension, Plaintiff in fact actually moves for relief under sections 2034.610 and 2034.620.

(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.

…

(Code Civ. Proc., § 203.610.)

“(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.”

(Code Civ. Proc., § 2034.620.)

The court finds the sought after designation sufficiently diligent given the notice of intent to seek the designation upon the substitution of new counsel into the case. Prime properly objected, thereby prompting the motion.

Prime emphasizes the designation of the expert as a new witness, as really a substitute witness for an already designated expert, rather than a counter expert. Defendant relies on the language of Code of Civil Procedure § 2034.280.

(a) Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.

(b) This supplemental list shall be accompanied by an expert witness declaration under subdivision (c) of Section 2034.260 concerning those additional experts, and by all discoverable reports and writings, if any, made by those additional experts.

…

(Code Civ. Proc., § 2034.280.)

Defendant correctly cites to the restriction regarding the necessity of a counter expert in order to obtain leave at this time in the case. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 497; see Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1025.) Defendant categorically identifies the seven areas of expert witness experts, including standard of care, accident reconstruction, neurology, neuropsychology, dental, and biomechanical engineer. [McDonald Decl., ¶ 6.] None of the designations include life planning/loss of earnings/financial considerations. Meanwhile, Plaintiff designated Jan Roughan, as both  “nurse and certified Life Care Planner.” [McDonald Decl., ¶ 5, Ex. A.]

Other than seeking to add Vega as a witness, the motion and reply lack specific address of the statutory requirements regarding counter designation upon presentation of the witness lists. The court therefore agrees with the argument of Prime that the designation of Vega constituets a substitution rather than a proper counter designation to any expert from responding defendant Prime.

Nevertheless, given only one defendant filed an opposition to the motion, the court lacks any evidence of any other defendant presenting a life care/future earnings expert, thereby supporting the motion. Plaintiff presents no such evidence, and therefore the court assumes no such basis exists.

Again the court acknowledges the participation of the non-opposing defendants in allowing Vega to testify. Nevertheless, without legally supported argument that the trial continuance stipulation and extension of expert discovery provided a renewed opportunity for the addition of experts listed without the counter declaration requirement provided in reliance on the motion, the court finds no basis for relief. The motion is therefore denied.

Neither party requested sanctions. (Code Civ. Proc. § 2034.630.)

Moving party to give notice.