Judge: Teresa A. Beaudet, Case: 18STCV05377, Date: 2023-01-17 Tentative Ruling

Case Number: 18STCV05377    Hearing Date: January 17, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Freddy M. (“Freddy M.”), by and through his guardian ad litem, Paola Mejia, Noe Reyes Lopez, and Paola Mejia (collectively, “Plaintiffs”) filed this action on November 16, 2018 against Defendants Joe Oroñoz and Sarah Oroñoz. On February 13, 2019, Plaintiffs filed an amendment to the Complaint naming PI Properties No. 79, LLC (“PI Properties”) in place of “Doe 21.”

The operative Third Amended Complaint (“TAC”) was filed on June 26, 2020, and asserts causes of action for (1) breach of implied warranty of habitability, (2) tortious breach of implied warranty of habitability, (3) negligence, (4) private nuisance, and (5) violation of Business and Professions Code section 17200. This action concerns alleged uninhabitable conditions at 6429 ½ S. Victoria Avenue, Los Angeles, California 90043 (the “Subject Property”), where Plaintiffs reside. (TAC, ¶¶ 1, 16.) Plaintiffs allege, inter alia, that deteriorated lead-based paint and other lead hazards at the Subject Property resulted in Freddy M. contracting lead poisoning and suffering permanent neurological, cognitive, and behavioral harm. (TAC,

¶ 70.)

On June 29, 2020, PI Properties filed a Cross-Complaint against a number of cross-defendants, asserting causes of action for (1) declaratory relief, (2) implied equitable indemnity, and (3) negligence.     

PI Properties indicates that on June 18, 2021, Plaintiffs served their demand for exchange of expert witness information. (Caligiuri Decl., ¶ 3, Ex. 1.) On July 13, 2021, Plaintiffs served their Designation of Expert Witnesses with nine retained experts and a number of non-retained experts. (Caliguri Decl., ¶ 4, Ex. 2.) Plaintiffs did not include Dr. Bradley A. Jabour in their initial Designation of Expert Witnesses served on July 13, 2021. (Caliguri Decl., ¶ 5.) On July 20, 2021, PI Properties served its designation of expert witnesses, which consisted of one retained expert and four non-retained experts. (Caliguri Decl., ¶ 6, Ex. 3.) On August 3, 2022, Plaintiffs served an Amended Designation of Expert Witnesses, adding Dr. Bradley A Jabour. (Caliguri Decl., ¶ 7, Ex. 4.)

PI Properties now moves for an order striking Plaintiffs’ Amended Designation of Expert Witnesses. Plaintiffs oppose.  

Discussion

Pursuant to Code of Civil Procedure section 2034.280, subdivision (a), “[w]ithin 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.” (See also Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (The Rutter Group 2022) ¶ 8:1659, “a supplemental list cannot be used to:…add experts on subjects designated by the party in the original exchange;…add experts on new subjects not raised by an opposing party’s designation; or…substitute for an already-designated expert.” [emphasis in original].)

PI Properties asserts that here, Plaintiffs’ attempted designation of Dr. Bradley A Jabour in Plaintiffs’ Amended Designation of Expert Witnesses violates Code of Civil Procedure section 2034.280. Specifically, PI Properties asserts that Dr. Jabour “will testify on Plaintiff’s MRI scan when their expert, Dr. Ronald S. Gabriel, will purportedly elicit opinions on exactly the same topics and has already been identified and retained in their initial ‘expert designation’ list.” (Mot. at p. 5:8-10.) Plaintiffs’ initial Designation of Expert Witnesses indicates that Dr. Gabriel is a

pediatric neurologist whose testimony will include, but is not limited to, the nature and extent of plaintiff’s injuries resulting from the subject incident, as well as required future medical care. (Caliguri Decl., ¶ 4, Ex. 2, p. 10.)

PI Properties also asserts that Plaintiffs’ Amended Designation of Expert Witnesses is untimely. As set forth above, Plaintiffs served their initial Designation of Expert Witnesses on July 13, 2021, and on July 20, 2021, PI Properties served its expert designation. (Caliguri Decl., ¶¶ 4, 6, Exs. 2-3.) Over a year later, on August 3, 2022, Plaintiffs served their Amended Designation of Expert Witnesses. (Caliguri Decl., ¶ 7, Ex. 4.) As discussed, “[w]ithin 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.” (Code of Civil Procedure section 2034.280, subdivision (a), emphasis added.) PI Properties also notes that Plaintiffs failed to move for leave of court to amend their expert witness list.

PI Properties asserts that the Court should thus preclude Dr. Jabour from offering opinion or rebuttal testimony. PI Properties notes that pursuant to Code of Civil Procedure section 2034.310, “[a] party may call as a witness at trial an expert not previously designated by that party if either of the following conditions is satisfied: (a) That expert has been designated by another party and has thereafter been deposed under Article 3 (commencing with Section 2034.410). (b) That expert is called as a witness to impeach the testimony of an expert witness offered by any other party at the trial. This impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other party’s expert witness, but may not include testimony that contradicts the opinion.”

In the opposition, Plaintiffs assert that “Defendant is asking the Court to apply a blanket preclusion of Dr. Jabour’s testimony. However, Defendant’s Motion must be denied as overbroad in scope as Dr. Jabour is a fact witness and certainly can be called to testify at trial.” (Opp’n at p. 2:11-14.) In the motion, PI Properties indicates that it “seeks an order…striking Plaintiffs’ untimely Amended Expert Witnesses Designation and excluding Dr. Bradley A Jabour from testifying at trial.” (Mot. at p. 3:11-13.) Plaintiffs assert that Dr. Jabour is a treating physician in this case, and that “Defendant’s Motion is moot in that Plaintiff may call Dr. Jabour as a fact witness at trial based on his personal observations of Plaintiff’s condition.”  (Opp’n at  p. 3:13-14.)

Plaintiff cites to Ochoa v. Dorado (2014) 228 Cal.App.4th 120, 140, where the Court of Appeal noted that, “[t]o the extent a physician acquires personal knowledge of the relevant facts independently of the litigation, his identity and opinions based on those facts are not privileged in litigation presenting an issue concerning the condition of the patient.  For such a witness, no expert witness declaration is required, and he may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience…Accordingly, no expert witness declaration is required for treating physicians to the extent that their opinion testimony is based on facts acquired independently of the litigation, that is, facts acquired in the course of the physician-patient relationship and any other facts independently acquired.” (Internal quotations and reference to [Citations.] omitted.)

PI Properties asserts that Dr. Jabour is not Plaintiffs’ treating physician because

Plaintiffs’ retained neurology expert Dr. Gabriel referred Plaintiff to Dr. Jabour, and requested that a report be created. In support of this assertion, PI Properties refers to certain deposition testimony for the first time in its reply. (See Reply at p. 15:15-20.) However, PI Properties does not provide any competent evidence of such testimony.

In any event, Plaintiffs do not dispute that their designation of Dr. Jabour was untimely, or that Plaintiffs already retained an expert to testify on the subject that Dr. Jabour will testify on. Based on the foregoing, the Court finds that PI Properties has demonstrated good cause to strike Plaintiff’s untimely Amended Designation of Expert Witnesses and to preclude Dr. Jabour from providing testimony as an expert witness. To the extent PI Properties is moving to exclude Dr. Jabour from testifying at trial for any purpose, such motion is denied.

Conclusion    

Based on the foregoing, the Court grants PI Properties’ motion only as to PI Properties’ motion to strike Plaintiffs’ August 3, 2022 Amended Designation of Expert Witnesses.

 PI Properties is ordered to provide notice of this ruling.

DATED:  January 13, 2023                            ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court