Judge: Steven A. Ellis, Case: 23STCV09451, Date: 2025-05-05 Tentative Ruling

Case Number: 23STCV09451    Hearing Date: May 5, 2025    Dept: 29

Hernandez v. Lamar Advertising Company
23STCV09451
Defendants’ Motion to Augment Expert Witness Designation and Continue Trial

Tentative

The motion is granted in part and denied in part.

The request to augment is denied.

The request to continue trial for approximately one week is granted to accommodate the schedule of defense counsel.

Background

On April 27, 2023, Daniel Hernandez (“Plaintiff”) filed a complaint against Lamar Advertising Company, Antonio Cabral Alamillo, Jr. (collectively “Defendants”), and Does 1 through 10 for motor vehicle negligence and general negligence causes of action arising out of an accident on October 12, 2022 on Soto Street near the intersection with Cincinnati Street in Los Angeles.

On June 30, 2023, Defendants filed an answer.

On April 14, 2025, Defendants filed this motion to augment expert witness designation and to continue trial.  The hearing was initially for May 7.  On April 17, 2025, the Court granted Defendants’ ex parte application in part, advanced the hearing on this motion to May 5, and continued trial to May 12, 2025.

Plaintiff filed an opposition on April 23, and Defendants filed a reply on April 29.

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.”

(Code Civ. Proc., § 2034.620.)

Discussion

This case arises out of a vehicle accident in October 2022.  In August 2023, Plaintiff provided discovery responses that identified treatment from a neurologist (Daniel Franc, M.D.) and included records in which Dr. Franc diagnosed Plaintiff with traumatic brain injury (TBI) and postconcussion syndrome. (McCormick Decl., ¶¶ 3-4 & Exh. 1.)  Additional records regarding neurological injuries were provided to Defendants in discovery in May 2024.  (Id., ¶¶ 5-6 & Exh. 2.)  Plaintiff asserts that he has developed post-traumatic Parkinsons or Parkinsonian symptoms caused by the brain injury sustained in the accident.  (Ibid; see also Fenton Decl., ¶ 4.)

When the case was filed, the Court scheduled trial for October 24, 2024.  In September 2024, the Court, on the stipulation of the parties, continued trial to March 10, 2025, and reset all discovery deadlines.  In January 2025, the Court, on the stipulation of the parties, continued trial to April 24, 2025, and reset all discovery deadlines. 

On March 7, 2025, the parties exchanged expert disclosures.  (Fenton Decl., ¶ 2.)  Plaintiffs designated (among other experts) Dr. Franc, a neurologist.  (McCormick Decl., ¶¶ 7-8 & Exh. 2.)  Defendants did not designate a neurologist but did designate Dr. Kyle Boone, a neuropsychological expert.  (Fenton Decl., ¶ 5.)  Defendants did not serve a supplemental expert designation.  (McCormick Decl., ¶ 7)

Defendants’ counsel states that they believed (and still believe) that Dr. Boone is qualified to testify about Plaintiff’s asserted neurological injuries.  (Fenton Decl., ¶ 5.)  After the deadline for a supplemental expert designation, however, Defendants learned that Plaintiff will attempt to limit or preclude testimony from Dr. Boone about neurological injuries.  (Ibid.) 

In response, Defendants now seek leave to augment their expert designation to include Arthur Kowell, M.D., a neurologist.  Defendants also seek a trial continuance of 30-60 days so that Dr. Kowell can review medical records and conduct a physical examination of Plaintiff.  In their reply brief, Defendants also state that trial counsel has a conflict on May 15-18.  (Fenton Reply Decl., unnumbered second paragraph.)

Request to Augment

Defendants’ request to augment their expert designation is denied for two independent reasons.

First, the motion is not timely.  Under Code of Civil Procedure section 2034.610, a motion to augment must be “made at a sufficient time in advance of he time limit for the completion of [expert] discovery … to permit the deposition of any expert to whom the motion relates to be taken within that time limit.  (Code Civ. Proc., § 2034.610, subd. (b).) 

Here, the relevant trial date was April 24, 2025.  (On April 17, the Court continued the trial to May 12 but did not extend any discovery deadlines.)  The last day for expert depositions was 15 days earlier, or April 9, 2025.  Defendants did not even file this motion until April 14, after the deadline for expert depositions. 

Section 2034.610, subdivision (b), does not contain an exception to this time limit for “exceptional circumstances,” but no such exceptional circumstances appear in this record. 

Second, and independently, Defendants have not shown good cause for the request to augment.  Under section 2034.620, Defendants must show (among) other things, at least one of the following: (1) Defendants would not in the exercise of “reasonable diligence have determined to call that expert witness” or (2) Defendants failed to designate the expert “as a result of mistake, inadvertence, surprise, or excusable neglect.”  Defendants have not shown that either one of these is true. 

Long before the expert designations, Plaintiff disclosed, and Defendants were aware, that Plaintiff attributed serious neurological injuries to the accident.  Defendants did not fail to designate an expert neurologist because of a mistake or inadvertence or excusable neglect: to the contrary, Defendants made a strategic decision to designate Dr. Boone, a neuropsychologist, to testify about Plaintiff’s neurological injuries.  (Fenton Decl., ¶ 4.)  That was a strategic decision that Defendants made, not one resulting from an oversight or a mistaken or inadvertence or neglect.  That may (or may not) have been a strategic error – Defendants still contend that Dr. Boone is qualified to testify on this subject (ibid.) – but it was the result of a calculated decision.  As such, it was not a “mistake, inadvertence, surprise, or excusable neglect” within the meaning of section 2034.620.

For these two independent reasons, the request to augment is denied.

The Court need not reach, and does not reach, Plaintiff’s other arguments in opposition to the motion.

Trial Continuance

Defendants’ initial request for a trial continuance of 30-60 days was based on the need for their new expert to have time to prepare to testify.  As the motion to augment is denied, so is this request for a trial continuance.

In their reply, Defendants also note that trial counsel has a conflict on May 15-18.  (Fenton Reply Decl., unnumbered second paragraph.) 

Based on the unavailability of trial counsel, and for good cause shown, this request for a trial continuance is granted.  Trial is continued to May 19, 2025.

Conclusion

The Court DENIES IN PART and GRANTS IN PART the motion for leave to augment the expert designation and to continue trial filed by Defendants Lamar Advertising Company and Antonio Cabral Alamillo, Jr.

The Court DENIES Defendants’ request to augment the expert designation.

The Court GRANTS IN PART Defendants’ request to continue trial.

The Court CONTINUES trial to May 19, 2025.  The Final Status Conference has already been held and is not rescheduled.  Discovery remains closed.

Moving Party to provide notice.