Judge: Teresa A. Beaudet, Case: 20STCV15869, Date: 2022-10-25 Tentative Ruling

Case Number: 20STCV15869    Hearing Date: October 25, 2022    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

On April 24, 2020, Plaintiffs Noel C. McDaid, Eileen McDaid, Jon Wesley Christensen, Hanne Jo Christensen, Kalista Grace Base, and Kendra Georgeann Base (collectively, “Plaintiffs”) filed this action against various defendants, including Defendants Brian Lee Zeek, Surf City Financial Group, and Allianz Life Insurance Company of North America (“Allianz”). The operative Third Amended Complaint (“TAC”) was filed on March 11, 2021, and asserts causes of action for professional negligence, breach of fiduciary duty, and intentional deceit/fraud.

On April 12, 2021, Brian Lee Zeek dba Surf City Financial Group, erroneously sued as Brian Lee Zeek, an individual, and Surf City Financial Group, an unknown California entity (“Zeek”) filed an answer to the TAC.

Zeek now moves for an order granting him leave to submit a tardy expert witness list.

 Plaintiffs oppose.  

            Request for Judicial Notice

The Court denies Zeek’s request for judicial notice filed in support of the reply. The Court notes that “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) 

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).)

            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.” 

The Court notes that on August 9, 2022, the Court issued an Order granting, in part, Zeek’s previous Motion for Leave to Designate Co-Defendant Allianz’s Previously Designated Expert and to Designate Additional Standard of Care Expert. The August 9, 2022 Order provides, inter alia, that “[t]he Court grants Zeek’s motion with regard to expert witness Karen L. Josephson, M.D., but in light of Zeek’s failure to comply with Code of Civil Procedure section 2034.720, subdivision (c)(3) with regard to the ‘standard of care’ expert, the Court denies Zeek’s motion without prejudice.”  

Zeek now seeks leave of Court to allow him to retain Larry Nevonen, a “standard of care” expert. As set forth above, pursuant to Code of Civil Procedure section 2034.720, “[t]he court shall grant leave to submit tardy expert witness information only if” certain conditions are satisfied, including that the moving party “[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, subd. (c)(2)-(3).) In connection with his previous motion, Zeek did not serve his proposed expert witness information as to the “standard of care” expert in advance of the Court’s hearing on the motion. Now, in connection with the instant motion, Zeek provides a proposed Expert Witness Designation and Expert Witness Declaration of Marc Y. Lazo, which lists Larry Nevonen (the proposed “standard of care expert”) as well as Karen L. Josephson, M.D. (Lazo Decl., ¶ 2, Ex. A.) Zeek indicates that this expert witness designation was served on all counsel on August 10, 2022. (Lazo Decl., ¶ 2.)

Plaintiffs contend that Zeek’s delay of over a month after he first sought to belatedly disclose experts cannot be considered “prompt” for purposes of Civil Procedure section 2034.720, subdivision (c)(3). But the Court notes that one day after the Court’s August 9, 2022 Order, Zeek served a proposed expert witness designation that listed expert Larry Nevonen. (Lazo Decl., ¶ 2, Ex. A.)  

As set forth in Zeek’s previous motion, Zeek indicates that he and co-defendant Allianz had previously discussed Zeek joining Allianz’ expert designations in pursuit of their defense of their clients against Plaintiffs’ allegations. (Lazo Decl., ¶ 3.) Zeek thus did not designate his own experts. (Lazo Decl., ¶ 3.) Allianz filed expert witness designations on May 3, 2022[1] and supplemented its designations on May 23, 2022. (Lazo Decl., ¶ 3, Ex. B.) Allianz subsequently settled its claims with Plaintiffs, and then withdrew its expert witness designations on June 2, 2022. (Lazo Decl., ¶ 4, Ex. C.) Zeek indicates that it was thereby left without any designated expert witnesses, and asserts that if any mistake was made in Zeek not designating experts, it was due to unforeseen circumstances that arose after the initial expert disclosure deadline. (Lazo Decl., ¶ 4.)

As to the meet and confer requirement set forth in Code of Civil Procedure section 2034.710, subd. (c), Zeek indicates that his counsel’s office previously contacted Plaintiffs’ counsel upon ascertaining the need to designate expert witnesses for Zeek, but that they were unable to resolve the issue informally. (Lazo Decl., ¶ 8.) 

For purposes of Code of Civil Procedure section 2034.720, subdivision (a), Plaintiffs contend that they relied on Zeek’s declination to call any expert witnesses to testify and developed trial themes and strategies based on the witness lists and evidence disclosed by the parties, which did not include any expert designations from Zeek. (Furgison Decl., ¶ 11.) Zeek counters that Plaintiffs will not be prejudiced by Zeek’s designation of a standard of care expert because trial is scheduled for April 26, 2023 and expert discovery has not commenced.

            For purposes of Code of Civil Procedure section 2034.720, subdivision (b), Plaintiffs contend that they will be prejudiced because they would be denied the benefits and fairness of the procedural safeguards whereby the parties are to simultaneously exchange expert designations. (Opp’n at p. 5:19-21.) But as discussed, under Code of Civil Procedure section 2034.720, the Court “shall” grant leave to submit tardy expert witness information if specified conditions are satisfied. Plaintiffs also contend that they will be prejudiced because they have already received opinions with outlines from their expert witnesses and have prepared them for trial testimony. (Furgison Decl., ¶ 11.) Plaintiffs further contend that they will incur substantial additional expert fees, attorneys’ fees, and costs to reformulate their case-in-chief, which was prepared based on Zeek’s decision not to designate experts. (Furgison Decl., ¶ 11.) Zeek counters that Plaintiffs will have ample time to review his experts’ reports and depose them before the April 2023 trial. 

            With regard to Code of Civil Procedure section 2034.720, subdivision (c)(1), Zeek contends that “Defendant’s request to designate Allianz’s previously designated expert(s) is the result of mistake, inadvertence, surprise and/or excusable neglect pursuant to Code of Civil Procedure section 2034.710(c)[2] in that co-Defendant Allianz settled its claims with Plaintiffs after an unsuccessful mediation without any notice to Defendant and then subsequently withdrew their expert designation on June 2, 2022.” (Mot. at p. 3:3-7.) Zeek also asserts that his counsel attempted for weeks following notice of the settlement to determine the terms of Allianz’s settlement with Plaintiffs to no avail, as the parties were unresponsive to Zeek’s counsel’s inquiries during those weeks. (Lazo Decl.,  ¶ 5.) Plaintiffs counter that Zeek’s motion and the accompanying declaration of Zeek’s counsel show that Zeek’s decision not to make his own expert designation was intentional, and that Zeek cannot now feign surprise that Allianz settled, which Plaintiffs assert was the foreseeable outcome of a mediation.

Plaintiffs also assert that Zeek failed to submit his late designation promptly after learning of the asserted mistake, inadvertence, surprise, or excusable neglect, as required by Code of Civil Procedure section 2034.720, subdivision (c)(2). Plaintiffs assert that Zeek knew of Allianz’s withdrawal of its expert designations at least as early as June 2, 2022. Plaintiffs also contend that Zeek waited weeks after the Court’s June 10, 2022, Final Status Conference to make his late designation, even though the Court declined to continue the expert witness designation dates at that conference. (Furgison Decl., ¶ 7.) However, Zeek filed his first motion for leave to designate expert witnesses soon thereafter, on June 28, 2022. The instant motion was filed on August 23, 2022, soon after the Court denied Zeek’s motion as to his “standard of care” expert without prejudice on August 9, 2022.

Conclusion

Based on the foregoing, the Court grants Zeek’s motion.

Zeek is ordered to give notice of this Order.

DATED: October 25, 2022                           

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court