Judge: Teresa A. Beaudet, Case: 19STCV19520, Date: 2022-09-21 Tentative Ruling

Case Number: 19STCV19520    Hearing Date: September 21, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On June 5, 2019, Plaintiff Mikhael Abdelnour (“Plaintiff”) filed this action against Defendant Walnut Mobile Home Park, Ltd. (“Defendant”), asserting causes of action for (1) trespass to land, (2) negligence, and (3) injunctive relief.

Plaintiff alleges that on April 24, 2018, he bought a home located at 9042-9044 Painter Ave. in Whittier California, (Compl., ¶ 7.) Defendant owns a mobile home park located at 9022-9032 Painter Ave in Whittier. (Compl., ¶ 8.) Defendant’s property is located adjacent to Plaintiff’s property and both share a common boundary line and fence. (Compl., ¶ 8.) Plaintiff alleges that Defendant’s electric meters, some of the trees, and some of the mobile homes are encroaching on Plaintiff’s property. (Compl., ¶¶ 8, 16.)

On August 26, 2022, Plaintiff filed an ex parte application for an order shortening time for hearing on Plaintiff’s motion for leave to submit tardy expert designation. The ex parte application requests that “the Court shorten time and set a hearing date on the Motion for Leave to Permit Tardy Expert Witness Designation (attached as Exhibit 1).” (Plaintiff’s August 26, 2022 ex parte application, p. 4:9-10.) On August 29, 2022, the Court issued a minute order indicating, inter alia, that Plaintiff’s ex parte application filed on August 26, 2022 is granted. The minute order also provides that “the Hearing on Motion for Leave To Permit Tardy Expert Witness Designation scheduled for 04/19/2023 is advanced to this date and continued to 09/21/22…”

Attached as “Exhibit J” to Plaintiff’s August 26, 2022 ex parte application is a “Motion for Leave to Submit Tardy Expert Witness Information, and For Relief Pursuant to CCP Sections

2034.710 et seq. and 473(b).” Defendant opposes the motion. 

Discussion

Pursuant to Code of Civil Procedure section 2034.710, subdivision (a), “[o]n motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” “A motion under subdivision (a) shall be made 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.”
(Code Civ. Proc., § 2034.710, subd. (b).) In addition, “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2034.710, subd. (c).)[1]

            Pursuant to Code of Civil Procedure section 2034.720, “[t]he court shall grant leave to submit tardy expert witness information 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 absence of a 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 that the moving party did all of the following:

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order 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.” 

As an initial matter, Plaintiff asserts in the motion that “[t]elephonic meet and confer was had on July 6, 2022 and counsel have exchanged email communications that did not result in resolving this issue.” (Mot. at p. 7:17-18.) However, Plaintiff’s counsel’s supporting declaration does not attest to these facts, nor does it contain any discussion concerning meet and confer efforts. (See Declaration of Vip Bhola.) As set forth above, a motion under Code of Civil Procedure section 2034.710 “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2034.710, subd. (c), emphasis added.) This language is mandatory.

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Conclusion

Based on the foregoing, Plaintiff’s motion is denied without prejudice. Plaintiff is ordered to give notice of this ruling.

DATED:  September 21, 2022                       ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court