Judge Teresa A. Beaudet, Case 20STCV05310 2023-03-29 Tentative Ruling

On February 10, 2020, Plaintiff Nahideh Harooni (“Plaintiff”) filed this action against Defendant Law Offices of David S. Lin a Professional Corporation. Plaintiff filed the operative First Amended Complaint (“FAC”) on December 10, 2020 against Defendant David S. Lin, individually and dba Law Offices of David S. Lin, APC. The FAC asserts causes of action for (1) breach of contract, and (2) general negligence. Law Offices of David S. Lin (“Defendant”) filed an answer to the FAC on January 14, 2020.

Plaintiff now moves for leave to amend its expert witness list to include designation of one additional expert witness. Defendant opposes.

Defendant moves for an order dismissing the action for Plaintiff’s lack of any proper timely designation of a legal negligence expert in this case. Plaintiff opposes.

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, Plaintiff asserts in the motion that “[t]he instant submission is made after 1) meet and confer failed…” (Mot. at p. 4:3.) 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 Adam Michael Sacks.) 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.

In addition, Plaintiff asserts that she “satisfies the requirements of ‘excusable neglect’ having timely filed and served its initial designation of experts, filed and served upon defendant its Supplemental Designation of Expert Witnesses on January 26, 2023. Thereafter Plaintiff promptly seeks to amend upon the availability of Plaintiff’s new expert who was not available as of the previous designation of experts.” (Mot. at p. 3:24-4:1.) Plaintiff’s counsel’s declaration provides, inter alia, “I contend that the instant application is in compliance with the Code under excusable neglect because of the [sic] proposed additional expert was unavailable upon submission of Plaintiff’s initial designation of experts. It is asserted that since trial has been vacated, there is no prejudice to defendant, and its options to conduct discovery are provided by the Code upon the grant of the instant request.” (Sacks Decl., ¶ 5.) However, Plaintiff’s motion does not provide any evidence concerning whether Plaintiff “[s]ought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect,” and “[p]romptly 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.” (Code Civ. Proc., § 2034.720, subds. (c)(2)-(3).)

Based on the foregoing, the Court denies Plaintiff’s motion for leave to amend expert witness list, without prejudice.

In the motion to dismiss, Defendant asserts that it may “properly move this Court to properly and fully dismiss this case given Plaintiff HAROONI’s inability to even remotely establish a prima facie case at time of the Trial of this case in light of the failure to have properly and timely designated a proper Legal Negligence Expert in this case before expiration of the Expert Witness Designation Time Deadline back in early Oct. 2022, as well as given the expiration of the Discovery Cut-off in this case on October 31, 2022 before the prior November 30, 2022 Trial date set in this case…” (Mot. at p. iv:20-26.)

Code of Civil Procedure section 2034.260, subdivision (a) provides, inter alia, “[a]ll 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.” Code of Civil Procedure section 2034.270 provides that “[i]f a demand for an exchange of information concerning expert trial witnesses includes a demand for production of reports and writings as described in subdivision (c) of Section 2034.210, all parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings, if any, made by any designated expert described in subdivision (b) of Section 2034.210.” Neither of these Code sections provide authority for dismissing an action if a plaintiff fails to timely designate an expert witness.

Defendant cites to no legal authority in the motion demonstrating that the Court has authority to dismiss this action due to Plaintiff’s failure to timely designate a legal negligence expert. Accordingly, the Court denies Defendant’s motion.[2]

Based on the foregoing, Plaintiff’s motion for leave to amend expert witness list is denied without prejudice.

THE PARTIES ARE REMINDED OF THEIR OBLIGATION TO DELIVER TO DEPARTMENT 50 COURTESY COPIES OF ANY DOCUMENTS CONTAINING A MEMORANDUM OF POINTS AND AUTHORITIES.

[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 Plaintiff asserts in the opposition to the motion to dismiss that the motion is “ineffective as a motion for reconsideration.” (Opp’n at p. 2:21.) Plaintiff contends that “[t]he prior motion to dismiss was heard and denied on November 8, 2022. Defendant had until November 18, 2022 to make an application for reconsideration under CCP §1008, and did not.” (Opp’n at p. 2:22-23.) On November 10, 2022, the Court issued an Order on Defendant’s “Ex Parte Application for an Order Dismissing the Entire Action for Plaintiff’s Lack of any Designation of Legal Malpractice Expert, or in the Alternative, for an Order Shortening Time to Hear Said Motion.” The Court’s November 10, 2022 Order provides, inter alia, that such ex parte application is “denied w/o prejudice to the filing of a regularly noticed motion.” Thus, the Court does not find that Defendant’s instant motion is an improper motion for reconsideration.

Superior Court of California

County of Los Angeles

Department 50