Judge: Steven A. Ellis, Case: 20STCV01492, Date: 2023-09-06 Tentative Ruling

Case Number: 20STCV01492    Hearing Date: September 6, 2023    Dept: 29

TENTATIVE

Defendants’ motion for leave to augment expert designation is GRANTED.

Background

On January 13, 2020, Plaintiff Stanley Horowitz filed a complaint against Defendants Home Depot U.S.A., Inc. and Chris Lewis alleging general negligence and premises liability. Plaintiff alleges that Defendant Chris Lewis struck a light fixture while operating a lift reach truck at The Home Depot located at 14603 Ocean Gate Ave, Hawthorne, California 90250, which fell and hit Plaintiff.

On August 3, 2023, Defendants filed a motion for leave to augment expert designation. On August 23, 2023, Plaintiff opposed. On August 29, 2023, Defendants replied.

Legal Standard

Code of Civil Procedure section 2034.610 provides that a court may grant leave to augment an expert witness designation on motion of any party who has engaged in a timely exchange of expert witness information.

Section 2034.620 requires that before granting a motion to augment an expert witness list, the court must find that that all of the following conditions are satisfied:

(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.)

Discussion

Defendants seek leave to augment their expert designation to add Dr. Lubow and Dr. Bredenkamp as retained expert witnesses. Defendants’ counsel submits a declaration stating that as a result of inadvertence and error, he failed to include both names on the final expert designation; Dr. Bredenkamp (but not Dr. Lublow) had been designated on an earlier list but his name was not carried forward to final expert designation. (Fisher Decl. ¶ 2.) Counsel claims responsibility for this mistake, which he discovered on August 2, 2023. (Id., ¶¶ 2, 12.)

On August 3, 2023, Defendants’ counsel contacted Plaintiff’s counsel and served an amended expert designation on Plaintiff that included Dr. Lubow and Dr. Bredenkamp. (Id., ¶ 3, Exhib. 3.) Plaintiff refused to stipulate to Defendants’ amended designation. Defendants filed this instant motion on the same date. Defendants offered dates for these two experts to be deposed in August, but Plaintiff declined.

Trial is scheduled for September 21.

Plaintiff opposes the motion and argues that he will be prejudiced by the augmented designation, as he believes that it will likely lead to a further delay of the trial. The Court has considered this argument but concludes that the prejudice to Defendants in not being able to present their case on the merits (due to an inadvertent error of counsel that counsel promptly attempted to remedy) far outweighs any prejudice to Plaintiff that may result from the augmentation, even if a further brief continuance of trial is necessary. Although he states that he will be prejudiced from a further delay of trial, Plaintiff has not presented any indication that he relied on the initial list or that he would suffer any unfair prejudice relating to presenting his case on the merits if this motion is granted. (Code Civ. Proc., § 2034.620, subds. (a) & (b).)

Plaintiff also argues that this motion is untimely as the two experts are unavailable for deposition before trial. Although it is true that Dr. Lubow will be on a medical leave and unavailable for deposition from September 7, 2023 to October 7, 2023, Defendants previously offered a date in August for his deposition (Plaintiff refused), and now Defendants offer a deposition later today, September 6, at 5 pm. Defendant proposes September 14 as a deposition date for Dr. Bredenkamp. 

The Court finds Defense counsel’s declaration to be sufficient in establishing the requirements under Code of Civil Procedure section 2034.620, subdivision (c)(2). Defense counsel states that the failure to include Dr. Lubow and Dr. Bredenkamp as expert witnesses was a result of his mistake. Further, upon discovery of the error, Defense counsel promptly and diligently sought leave to augment, amended promptly, served a copy of the proposed expert witness information on Plaintiff’s counsel, and offered deposition dates in advance of trial. (Fisher Decl. ¶¶ 2, 3, 10, 12.) Defendants have satisfied the statutory requirements for leave to augment.

The Court certainly understands that Plaintiff may not be prepared to depose Dr. Lublow this afternoon. If that is the case, then the practical options appear to include (a) to grant a short continuance of trial so that Dr. Lublow may be deposed following his return from medical leave; or, if Plaintiff prefers not to continue trial, then (b) for Plaintiff to depose Dr. Lublow in the evening or on a weekend day during trial. Neither option is necessarily ideal, and the Court is open to other alternatives.

At the end of the day, the error of Defendants’ counsel should not preclude Defendants from having their case heard on the merits, particularly where Defense counsel brought the matter to the attention of Plaintiff’s counsel promptly and diligently sought to remedy the error. Nor should the error of Defendants’ counsel, and the remedy for it, preclude Plaintiff from deposing Dr. Lublow and otherwise preparing fully for trial.

Conclusion

In light of the foregoing, Defendants’ Motion is GRANTED. Defendants’ expert list is augmented to include Dr. Lublow and Dr. Bredenkamp.

Moving party to give notice.