Judge: Steven A. Ellis, Case: 21STCV18268, Date: 2025-05-30 Tentative Ruling

Case Number: 21STCV18268    Hearing Date: May 30, 2025    Dept: 29

Davenport v. City of Pasadena
21STCV18268
Plaintiff’s Motion to Strike Supplemental Designation of Experts by Defendant

Tentative

The motion is denied.

Background

Plaintiff Sarah Davenport (“Plaintiff”) alleges that while she was jogging in a public park at or near 1365 North Raymond Avenue in Pasadena on September 16, 2020, her right foot sank into a concealed hole that was covered with grass, causing her to sustain a severe injury to her right ankle.

On May 14, 2021, Plaintiff filed the Complaint in this action asserting a cause of action for dangerous condition on public property against City of Pasadena (“Defendant”), County of Los Angeles (“County”), and Does 1 through 20.

On June 18, 2021, Plaintiff filed a request for dismissal, without prejudice, of her claims against County.

On July 13, 2021, Defendant filed its answer.

On May 15, 2025, Plaintiff filed this motion to strike Defendant’s supplemental expert designation.  On Plaintiff’s ex parte application, the Court advanced the hearing date to May 30 and set May 27 as the last day for Defendant to file any written opposition.  Defendant filed an opposition on May 27.

Legal Standard

Code of Civil Procedure section 2034.260 states, in relevant part:

“(a) All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange.

(b) The exchange of expert witness information shall include either of the following:

(1) A list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial.

(2) A statement that the party does not presently intend to offer the testimony of an expert witness.”

Code of Civil Procedure section 2034.280 provides for a supplemental designation of experts.  Subdivision (a) of that section states:

“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.”

Each party has a right under section 2034.280 “to supplement its expert witness exchange by adding experts to cover subjects on which the other party indicates it plans to offer expert testimony, and on which the opposing party had not previously retained an expert to testify.”  (Du-All Safety, LLC v. Super. Ct. (2019) 34 Cal.App.5th 485, 498; see also 2 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2024), ¶ 8:1686.)

Having said that, “[o]ur system requires that defendants participate in the litigation essentially simultaneously with plaintiff. Section 2034 expressly requires it with respect to expert designations.” (Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1027.) “When it comes to issues that both sides anticipate will be disputed at trial, a party cannot merely ‘reserve its right’ to designate experts in the initial exchange, wait to see what experts are designated by the opposition, and then name its experts only as purported ‘rebuttal’ witnesses.” (Id. at p. 1021.)  

A party must include in its initial exchange “every witness it expects to call at trial” but need not also list “every expert witness it anticipates using to rebut the experts the other side might designate as an expert.”  (Du-All Safety, LLC, supra, 34 Cal.App.5th at p. 498.)

Discussion

The parties have exchanged expert designations on a number of occasions in this matter, including (most recently) on April 14, 2025.  (Ballard Decl., ¶ 3; Miller Decl., ¶¶ 2, 5, 10.)  Plaintiff’s designation included Dr. Babak Samimi (board-certified in orthopedic surgery) and Dr. Joshua Prager (board-certified in pain medicine).  (Ballard Decl., ¶ 3.)  Defendant designated a neurologist, an economist, a lifecare planner, and an engineer, but no experts in orthopedics or pain medicine.  (Id., ¶ 9 & Exh. C; Miller Decl., ¶ 10.)

On May 5, 2025, Defendant served a supplemental designation identifying Dr. Stuart Gold (an orthopedic surgeon) and Dr. Alireza Katouzian (an anesthesiologist to testify about pain management).  (Ballard Decl., ¶ 10 & Exh. D; Miller Decl., ¶¶ 4, 8-9.)

Plaintiff now seeks to strike this supplemental designation.  Plaintiff argues (among other things) that Defendant was aware (including from her prior expert designations) that Plaintiff intended to call Dr. Samini as an expert orthopedist and Dr. Prager as an expert in pain medicine and that Defendant engaged in improper gamesmanship by waiting until the supplemental designation to identify its own experts in these areas.

The Court has considered and evidence and argument presented by both sides and denies Plaintiff’s motion to strike.  Although the existence of orthopedic and pain management issues in the case was known well before the expert designations, Defendant has adequately explained that there were significant developments regarding the nature of Plaintiff’s claimed injuries and damages in connection with, and shortly after, the initial expert designations.  (Miller Decl., ¶¶ 3, 7.)  Based on these developments, Defendant made the decision to use the supplemental designation process to identify its own experts in these areas.  (Ibid.)  Defendant had not decided to retain either expert prior to the time of the initial designation.  (Id., ¶ 9.)

This matter does not present the extreme gamesmanship present in Fairfax, supra.  To the contrary, Defendant participated in the initial disclosure and has shown an adequate basis for its supplemental designation.  As the Court of Appeal pointed out in Du-All Safety, LLC, supra, “the plain language of [Code of Civil Procedure] section 2034.210 … requires only that a party designate the experts it expects to call at trial.”  (34 Cal.App.5th at p. 498.)  Defendant has shown that it changed its mind regarding experts as a result of information obtained in, and about the same time as, the initial expert designations, and section 2034.280 “offers a way to effectuate this change of mind.”  (Ibid.)

The motion is denied.

Conclusion

The Court DENIES Plaintiff Sarah Davenport’s motion to strike Defendant City of Pasadena’s supplemental expert designation.