Judge: Steven A. Ellis, Case: 21STCV35207, Date: 2023-08-28 Tentative Ruling

Case Number: 21STCV35207    Hearing Date: February 23, 2024    Dept: 29

Motion to Strike Defendant’s Supplemental Experts filed by Plaintiff Maria Izabel Recinos.

TENTATIVE

The motion is denied.

BACKGROUND

On September 24, 2021, Plaintiff Maria Izabel Recinos (“Plaintiff”) filed her complaint against Defendant Numero Uno Acquisitions, LLC (“Defendant”) and Does 1 to 25 for premises liability cause of action arising from a slip and fall occurring on October 2, 2019.  Defendant filed its answer on February 3, 2022.

The parties exchanged expert witness information on December 5, 2023. 

Defendant disclosed one retained expert witness, SangDo Park. M.D.  (Nalbandyan Decl., Exh. B.)  Defendant described the substance of Dr. Park’s anticipated testimony to include (in part) “an opinion as to the course of treatment prescribed for the Plaintiff and the reasonableness and necessity of each treatment.”  (Ibid.)

Plaintiff disclosed three retained expert witnesses: Stepan Kasimian, M.D.; Mark Burns, BSME, JC, CXLT, CPS; and Neil Ghodadra, M.D.  (Nalbandyan Decl., Exh. A.)  Plaintiff described the substance of Dr. Kasimian’s anticipated testimony to include (in part) “the necessary and reasonableness of Plaintiff’s medical treatments and charges incurred and/or to be incurred.”  (Ibid.) Plaintiff described the substance of Dr. Ghodadra’s anticipated testimony to include (in part) “the necessary and reasonableness of Plaintiff’s medical treatments and charges incurred and/or to be incurred”; “customary and reasonable fees associated with the services and care provided to Plaintiff”; “all medical billing issues related to the subject medical treatment, past and future”; “the reasonable rates for such services”; and “Plaintiff’s potential life care needs, her losses and damages, the cost of care past and future, durable and other goods, and care, and expected future conditions.”  (Ibid.) Plaintiff described Mr. Burns as a forensic engineer whose studies address “accident reconstruction, accident causation, safety engineering, Building Code compliance, industry standards, slip resistance, retail safety & risk management, and human factors”; the substance of Mr. Burns’s anticipated testimony is to include (in part) “reconstruction of the subject incident, including but not limited to, liability and causation.”  (Ibid.)

On December 20, Defendant served a supplemental designation of expert witnesses.  In this supplemental designation, Defendant expanded the anticipated testimony of its expert witness Dr. Park to include now the “reasonable cost” of Plaintiff’s treatment.  (Nalbandyan Decl., Exh. C.)  Defendant also listed a new retained expert witness, Alex J. Balian, MBA, “a safety and operations expert in operating various retail establishments,” to testify on (in part) “the applicable standard of care for grocery store safety inspection procedures, store maintenance, security, general safety procedures, and training procedures.”  (Ibid.) 

Plaintiff filed this motion to strike Defendant’s supplemental expert designation on January 30, 2024. Defendant filed an untimely opposition on February 13, 2024 (served on February 12).  Plaintiff filed her reply on February 15, 2024.

LEGAL STANDARD

Code of Civil Procedure section 2034.260 states:

“(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, subdivision (a), provides for service of a supplemental expert witness list.  That statute provides: “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.”

“Our 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 1021.)

Having said that, parties have a “right 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 (2023), ¶ 8:1686.)  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 wise might designate as an expert.”  (Du-All Safety, LLC, supra, 34 Cal.App.5th at p. 498.)

DISCUSSION

As a threshold matter, Defendant’s opposition was untimely.  Defendant was required to file and serve the opposition by February 8 (nine court days before the hearing, with two intervening court holidays).  (Code Civ. Proc., § 1005, subd. (b).) Defendant served the opposition on February 12 (a court holiday) and filed it at midnight on February 13.   

The Court will exercise its discretion to consider Defendant’s late filed opposition, given the importance of this issue and the recent continuance of the trial date to April 23.  The Court is inclined to continue the hearing to allow Plaintiff additional time to file a reply if Plaintiff so requests.

Turning to the merits, the Court DENIES the motion to strike.  The purpose of the supplemental expert witness list provision set forth in Code of Civil Procedure section 2034.280, subdivision (a) is to allow a party to designate an expert witness to testify on (1) “a subject to be covered by an expert designated by an adverse party to the exchange” when (2) “the party supplementing an expert witness list has not previously retained an expert to testify on that subject.”  That is precisely what Defendant has done here.  In contrast to the defendant in Fairfax v. Lords (2006) 138 Cal.App.4th 1019, Defendant here did not fail to engage in the initial simultaneous exchange, and there is not sufficient evidence for the Court to find that Defendant was engaged in some type of improper “wait and see” approach to expert disclosures that unfairly prejudiced Plaintiff.  To the contrary, the Court accepts the explanation provided by Defendant in counsel’s declaration.  (Leon Decl., ¶¶ 9-12.)

CONCLUSION

The Court DENIES Plaintiff’s motion to strike Defendant’s supplemental expert designation. 

Moving Party to provide notice.