Judge Teresa A. Beaudet, Case 19STCV19520 2022-09-29 Tentative Ruling

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

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.

(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, on September 21, 2022, the instant motion came on for hearing and the Court issued an order continuing the hearing on the motion. The Court’s September 21, 2022 minute order provides, inter alia, that “Plaintiff is to file and serve the requisite Declaration by 4:00p.m. on September 22, 2022 with a courtesy copy delivered to Department 50.” On September 21, 2022, Plaintiff’s counsel filed a declaration concerning his meet and confer efforts.

As to the merits of the motion, Defendant notes that it served a Demand for Exchange of Expert Witness Information on June 9, 2021, and states that expert witness disclosures were due on July 20, 2021. (Manukyan Decl., ¶ 3, Ex. A.) On July 20, 2021, Plaintiff served a “Designation of Expert and Non-Retained Experts and Witnesses,” which appears to list a “non-retained” expert at an architecture engineering office who passed away. (Manukyan Decl., ¶ 4, Exhibit B.) The July 20, 2021 designation, signed by Plaintiff’s prior counsel Motaz M. Gerges, also indicates that “Plaintiff’s attorney has been in the hospital anticipating emergency back surgery and a transfer from West Hills Hospital to Holy Cross Hospital…and will amend this designation once he is out. Plaintiff’s attorney tried to get an extension and stipulation from Defendant’s counsel and was refused.” (Ibid.)

Plaintiff submits the Declaration of Mr. Gerges in connection with the instant motion, who indicates on or about July 4, 2021, he was involved in a car accident, and thereafter had emergency back surgery and learned he had a rare blood cancer disease. (Gerges Decl., ¶ 3.) On July 20, 2021, Mr. Gerges requested that opposing counsel extend the deadline to designate experts for 15 days due to his emergency back surgery, but this request was refused. (Gerges Decl., ¶ 6, Ex. 2.) Mr. Gerges ultimately had to withdraw from representing Plaintiff. (Gerges Decl., ¶ 4.) Plaintiff found a new attorney, Mr. James Hornbuckle, who substituted into this case on January 10, 2022. (Mikhael Decl., ¶ 5.)[2] On June 6, 2022, the Court issued an order granting Mr. Hornbuckle’s motion to be relieved as counsel for Plaintiff. Plaintiff’s current counsel, Vip Bhola, asserts that “Mr. Hornbuckle, did very little on [Plaintiff’s] case, and took no action to address the expert witness problem.” (Bhola Decl., ¶ 11.)

Although not marked as an Exhibit, one of the documents attached to Plaintiff’s current counsel’s declaration is “Plaintiff’s [Proposed] Expert Witness Designation and Expert Witness Declaration of Vip Bhola, Esq.” The proposed expert witness designation indicates that Plaintiff seeks to designate as expert witnesses: (1) Don Swartzbaugh, an arborist[3]; (2) Brandon Messina, a general contractor; and (3) Atanacio Payan, a land surveyor.

In the opposition, Defendant asserts that it will be prejudiced if the instant motion is granted, because it has relied heavily on the absence of Plaintiff’s expert designations in its trial

preparations. Specifically, Defendant notes that on May 27, 2022, the Court issued an Order granting Defendant’s unopposed motion to bifurcate liability and damages. Defendant argued in support of the motion to bifurcate that in order to prove his claim for trespass Plaintiff would need a land surveyor to opine on the respective property line, but failed to designate any experts. Defendant argued that judicial economy and efficiency would thus be promoted by bifurcation as Plaintiff would not be able to prove his case in chief without expert testimony. (See May 27, 2022 Order.) Defendant also indicates that it has already engaged in trial preparations and filed motions in limine relying on Plaintiff’s failure to designate experts. (Manukyan Decl., ¶¶ 8, 10.)

However, the Court finds that Plaintiff has demonstrated that he failed to timely designate expert witnesses as a result of his former counsel’s (Mr. Gerges’s) excusable neglect. Plaintiff also notes that the Los Angeles Superior Court Chapter 3, Appendix 3.A “Guidelines for Civility in Litigation,” provides, inter alia, as follows: “(a) CONTINUANCES AND EXTENSIONS OF TIME. (1) First requests for reasonable extensions of time to respond to litigation deadlines, whether relating to pleadings, discovery or motions, should ordinarily be granted as a matter of courtesy unless time is of the essence. A first extension should be allowed even if the counsel requesting it has previously refused to grant an extension.”

Defendant also notes that Plaintiff’s current counsel filed a Substitution of Attorney on June 14, 2022. Defendant asserts that even if Plaintiff’s failure to designate experts was the result of mistake, inadvertence, surprise, or excusable neglect, Plaintiff’s current counsel’s failure to act promptly to remedy his mistake necessitates Plaintiff’s request being denied at this stage.[4] But Plaintiff’s current counsel indicates that on July 7, 2022 (shortly after he substituted in), he called Defendant’s counsel and left a message asking to discuss the expert witness designation. (Declaration of Vip Bhola, Esq. Re: Meet and Confer Regarding Experts, ¶ 3.) The instant motion was filed on August 26, 2022.

Lastly, Defendant asserts that “allowing Plaintiff’s proposed late expert designation will entirely change the theories of liability and the claims the parties have litigated to date,” because “[a]t no point in written discovery has Plaintiff disclosed a claim for property damage caused by Defendant’s tree’s roots.” (Opp’n at p. 5:19-21.) But as Plaintiff notes, he alleges in the Complaint that “Defendants have several trees that have roots causing damage to Plaintiff’s properties.” (Compl., ¶ 13.)

Based on the foregoing, Plaintiff’s motion for leave to submit tardy expert witness information is granted.

Pursuant to Code of Civil Procedure section 2034.720, subdivision (d), the Court grants the motion on the condition that Plaintiff make his three expert witnesses available for deposition under Article 3 (commencing with Section 2034.410) within 30 days of the date of this Order. In addition, the Court grants Defendant leave to designate any additional expert witness(es) related to the subject of root damage, as necessary, within 30 days of the date of this Order. Finally, the Court vacates the October 5, 2022 trial date; the Court will discuss a new trial and FSC date at the hearing.

[1]Pursuant to Code of Civil Procedure section 2016.040, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

[2]The Court notes that the substitution of attorney pertaining to Mr. Hornbuckle was filed on January 21, 2022.

[3]Plaintiff’s proposed expert witness designation indicates that Mr. Swartzbaugh is expected to testify as to, among other things, the trees and tree roots that allegedly caused damage to Plaintiff’s property.

[4]Defendant also asserts that Plaintiff’s current counsel’s lack of professionalism necessitates Plaintiff’s request being denied. (See Manukyan Decl., ¶¶ 23, 24, Ex. E.) Although the Court does not find that this is grounds for denying the motion, the Court finds the message set forth in Exhibit E to be entirely unacceptable and unprofessional. The Court calls to the attention of Plaintiff’s counsel the Los Angeles Superior Court Local Rule 3.26 which provides, “[t]he guidelines adopted by the Los Angeles County Bar Association are adopted as civility in litigation recommendations to members of the bar, and are contained in Appendix 3.A.” The Appendix 3.A “Guidelines for Civility in Litigation” are even cited by Plaintiff in the reply and contain a section regarding “Communications with Adversaries.” (Appendix 3.A(d).) The Court expects that Plaintiff’s counsel will conform his conduct to these Guidelines in all future communications with opposing counsel.

Superior Court of California

County of Los Angeles

Department 50