Judge Steven A. Ellis, Case Number: 19STCV33448, Date: 2024-03-04 Tentative Ruling

Plaintiff Marsha Elizabeth Giles (“Plaintiff”) alleges that on March 25, 2019, she was riding her bicycle on Towne Avenue near La Verne Avenue when she struck a pothole, causing her to fall to the ground and sustain substantial injuries. On September 19, 2019, Plaintiff filed the Complaint in this action, asserting a cause of action for statutory liability against Defendants City of Pomona (“City”) and Does 1 through 50. City filed its Answer on February 19, 2021.

Trial in this matter has been continued several times. Most recently, in December 2023, based on the stipulation of the parties, the Court continued the trial date to March 14, 2024, and reset all discovery deadlines based on the new trial date.

There is some confusion in the file regarding precisely what is before the Court on March 4. The Court acknowledges some (if not most) of the responsibility for this confusion.

On November 27, 2023, the parties exchanged expert designations. City contended that Plaintiff improperly designated two orthopedic experts to provide duplicative and overlapping expert opinion testimony. On January 17, 2024, City filed a motion for a protective order requiring Plaintiff to reduce the designation of two orthopedic experts to one. That motion was set for hearing on March 19, five days after the start of trial.

Subsequently, the Court granted the parties’ stipulation to continue the trial date and discovery deadlines. Accordingly, the parties exchanged updated expert designations in January 2024. In that updated exchange, Plaintiff apparently designated only one orthopedic expert. Nonetheless, City now contends that Plaintiff added a neurosurgeon who is designated to provide opinion testimony that is duplicative of that expected from Plaintiff’s orthopedic expert. (In other words, although the identity, background, and training of the expert has changed, City contends that the issue of duplicative or overlapping opinion testimony remains.)

City reserved a hearing date of May 9 for a motion for a protective order to address the issue of the allegedly overlapping expert designations in the January 2024 exchange. Then City filed an ex parte application that was heard on February 15. In the ex parte application, City sought an order “advancing” the hearing date on a motion City had not yet filed or, in the alternative, an order continuing trial.

After hearing from counsel, the Court ruled on City’s ex parte application. This is where some confusion may appear.

According to the minute order: (1) the Court set a hearing on City’s motion to continue trial (not City’s motion for a protective order) on March 4: (2) the Court ordered City to file and serve its motion papers that day (February 15); (3) the Court ordered Plaintiff to file any opposition by February 29, with reply arguments to be made orally at the hearing; and (4) the Court ordered City to give notice. Moreover, the Court’s records identify that what is set for hearing on March 4 is a motion to continue trial.

What has occurred since February 15 is not consistent with what was contained in the (possibly erroneous) minute order. City did not file a notice of ruling. City did not file moving papers on February 15. But one week later, on February 22, City did file its new motion for a protective order to address the issue of allegedly duplicative expert designations, with the hearing date identified as May 9. Plaintiff filed an opposition to that motion on February 28, with the hearing date identified as March 4.

In light of the above, it appears to the Court that there is an error in the minute order and that what is set for hearing on March 4 is City’s motion for a protective order (filed on February 22, with Plaintiff’s opposition filed on February 28, and any reply arguments to be presented orally at the hearing).

Before proceeding to the merits of that motion, however, the Court must inquire of counsel for both sides to confirm that they share that understanding and that they are prepared to address the merits of City’s protective order motion.

“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.) The information that must be included in that simultaneous exchange is set forth in detail in Code of Civil Procedure section 2034.260.

“(a) A party who has been served with a demand to exchange information concerning expert trial witnesses may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. The protective order may include, but is not limited to, one or more of the following directions:

…

(6) That a party or a side reduce the list of employed or retained experts designated by that party or side ….”

Discussion

The Court will hear from counsel.

Conclusion

The Court will hear from counsel.