Judge: Steven A. Ellis, Case: 20STCV36106, Date: 2024-12-17 Tentative Ruling
Case Number: 20STCV36106 Hearing Date: December 17, 2024 Dept: 29
Gulesserian v. Akopian
20STCV36106
Plaintiff’s Motion to Augment Expert Witness Designation
TENTATIVE
The motion is granted.
BACKGROUND
On September 22, 2020,
Yvette Gulesserian (“Plaintiff”) filed a complaint against Nina Margarian
Akopian, Gabriel Akopian (collectively “Defendants”), and Does 1 through 20 for
negligence and negligence per se arising out of an automobile accident on
September 27, 2018.
On November 20, 2020,
Defendants filed an answer.
Trial has been continued
on a number of occasions. Most recently,
on September 26, 2024, trial was continued by agreement of the parties to
January 10, 2025; all discovery remained closed except for expert depositions.
On November 18, 2024,
Plaintiff filed this motion to augment her expert witness designation.
Defendants filed an opposition on December 4, and Plaintiff filed a reply on
December 11.
LEGAL STANDARD
Code of
Civil Procedure section 2034.610 provides:
“(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.
(c) The
motion shall be accompanied by a meet and confer declaration under Section
2016.040.”
(Code
Civ. Proc., 2034.610.)
Code of
Civil Procedure section 2034.620 states:
“The court
shall grant leave to augment or amend an expert witness list or declaration only
if 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.”
DISCUSSION
The parties designated
their expert witness on June 27, 2024. (Tashjian Decl., ¶ 3.) It was only months
later, on October 16, 2024, that Dr. Marc Kayem “assumed the plaintiff’s care.”
(Id., ¶ 4.) Plaintiff promptly requested
a stipulation to add Dr. Kayem as an expert.
(Id., ¶ 5.)
The Court has carefully
considered the evidence in the record, the argument of each side, and all of
the requirements of Code of Civil Procedure section 2034.610 and 2034.620. The Court finds that all of the procedural
and substantive requirements are satisfied and grants the motion.
Of particular
significance, the Court finds that Plaintiff has acted with reasonable
diligence and that Defendants will not be unduly prejudiced by the addition of
an additional expert. Dr. Kayem is,
according to Plaintiff, primarily an otolaryngologist (an ENT specialist) who
has recently begun treating the injuries that Plaintiff attributes to the
accident as disclosed in discovery, including headaches, vertigo, memory
issues, and neck-related symptoms. Plaintiff
has offered to make Dr. Kayem available for deposition promptly.
CONCLUSION
Accordingly,
the Court GRANTS Plaintiff’s motion to augment her expert list to add Dr. Marc
Kayem.
Moving Party to give notice.