Judge: Teresa A. Beaudet, Case: 20STCV43369, Date: 2023-03-29 Tentative Ruling

Case Number: 20STCV43369    Hearing Date: March 29, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Ann Turkel (“Plaintiff”) filed this action on November 12, 2020 against Defendants Jim Falk Motors of Beverly Hills, Inc. and Toyota Motor Credit Corporation, dba Lexus Financial Services (“TMCC”). Plaintiff asserts causes of action for (1) financial abuse of an elder, (2) negligence, (3) intentional infliction of emotional distress, (4) breach of covenant of good faith and fair dealing, (5) violation of the Rosenthal Fair Debt Collection Practices Act, (6) violation of Business and Professions Code section 17200, and (7) recission.

On January 25, 2021, Jim Falk Motors of Beverly Hills, Inc., d/b/a Jim Falk Lexus of Beverly Hills (“Defendant”) filed an answer to the Complaint. On July 21, 2022, Plaintiff filed a request for dismissal with prejudice of TMCC only. The dismissal was entered on July 21, 2022. 

On August 16, 2022, Defendant filed “Motion in Limine No. 4 Preclude Expert Opinion Testimony of Non-Designated Expert.”

On January 23, 2023, the Court held a Final Status Conference (“FSC”) in this matter. The Court’s January 23, 2023 minute order provides, inter alia, that “[t]he defendant’s Motion in Limine No. 4 - Preclude Expert Opinion Testimony of NonDesignated Expert filed by Jim Falk Motors of Beverly Hills, Inc. on 08/16/2022 and Motion in Limine No. 4 - To Preclude Expert Opinion Testimony Of Non-Designated Expert filed by Jim Falk Motors of Beverly Hills, Inc. on 01/06/2023 is ruled upon as follows: -the proffer as to the testimony by Dr. Daniel Auerbach was that he would testify that he called Plaintiff nearly daily to check on her. -The Court finds that this testimony is not relevant and is excluded.”

Plaintiff now moves that the “Court reconsider its order excluding percipient testimony by Dr. Auerbach or, in the alternative, issue an Order allowing Plaintiff to augment her expert designation.” Defendant opposes. 

Discussion

Code of Civil Procedure section 1008, subdivision (a) provides as follows:

“[W]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

As an initial matter, the Court agrees with Defendant that Plaintiff’s motion for reconsideration does not meet the requirements of Code of Civil Procedure section 1008, subdivision (a).

Defendant notes that the Court’s January 23, 2023 minute order provides, “[n]otice is waived.” Ten days after January 23, 2023 is February 2, 2023. The instant motion was filed on February 23, 2023, more than ten days after the January 23, 2023 minute order was filed.

Plaintiff asserts that since notice was waived, the ten-day deadline set forth in Code of Civil Procedure section 1008 is not applicable. In any event, noted by Defendant, Plaintiff offers no “new or different facts, circumstances, or law” that was not known at the January 23, 2023 FSC.

Plaintiff also asserts that “[t]his motion is a formal request for reconsideration under Code of Civil Procedure section 1008, but even without it, the Court always has the ability to reverse itself. The court always has inherent power to correct its own errors when they are called to the court’s attention by way of an improperly filed motion.” (Mot. at p. 3:23-26.) In support of this assertion, Plaintiff cites to Boschetti v. Pacific Bay Investments Inc. (2019) 32 Cal.App.5th 1059, 1070, where the Court of Appeal found as follows:

Our Supreme Court has made clear that, while Code of Civil Procedure section 1008 prohibits a party from making a renewed motion not based on new facts or law, it does “not limit a court's ability to reconsider its previous interim orders on its own motion, as long as it gives the parties notice that it may do so and a reasonable opportunity to litigate the question.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096–1097 [29 Cal. Rptr. 3d 249, 112 P.3d 636].) The court explained, “We cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling … . [I]t should not matter whether the ‘judge has an unprovoked flash of understanding in the middle of the night’ [citation] or acts in response to a party’s suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.” (Id. at p. 1108; see Minick v. City of Petaluma (2016) 3 Cal.App.5th 15, 34 [207 Cal. Rptr. 3d 350] [“Trial courts always have discretion to revisit interim orders in service of the paramount goal of fair and accurate decisionmaking”]; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308 [70 Cal. Rptr. 3d 691] [“Le Francois simply requires that the trial court reconsider a prior ruling based on its own realization that the ruling was erroneous, and not based upon a determination that [an improper] motion to reconsider should itself be granted on its merits.”]; accord, Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73–74 …

(Emphasis in original.)

Plaintiff argues that “[t]he ruling to exclude Dr. Auerbach as a percipient witness was made with no notice to Plaintiff to prepare for the argument. The Motion before the Court was to exclude Dr. Auerbach from providing expert testimony, an issue that Plaintiff did not oppose. Without notice, the Court acted sua sponte in expanding the scope of Defendant’s request by precluding Mr. Auerbach from testifying as a percipient witness.” The Court does not find that Plaintiff’s characterization of the procedural history is entirely accurate. 

Defendant’s August 16, 2022 “Motion in Limine No. 4 Preclude Expert Opinion Testimony of Non-Designated Expert” argued as follows:  

“Plaintiff’s witness list includes Daniel Auerbach, who is incorrectly identified as a ‘percipient witness’ and whose testimony will involve ‘Plaintiff’s emotional distress’. Daniel Auerback, MD is actually a psychiatrist, who Plaintiff identified as her ‘Psychopharmacologist’, whom she has seen, on and off for 21 years. Plaintiff testified that she spoke with Dr. Auerback on the phone, at various times, when she was stressed, including one or more calls to discuss stress from circumstances arising from this case. Plaintiff did not designate Dr. Auerback as an expert witness. Any opinion offered by  Dr. Auerback will be expert opinion under Cal. Evidence. Code § 801 and should be precluded, and to the extent Dr. Auerback repeats what he was told by Plaintiff, it should be precluded as inadmissible hearsay.” (Defendant’s Motion in Limine No 4. at p. 3:6-14.)

In her opposition to Defendant’s Motion in Limine No. 4, Plaintiff argued that the motion was untimely, that Defendant ignored Plaintiff’s attempt to make the motion timely, and that “Plaintiff has put her treating psychiatrist, Daniel Auerbach, on the witness list as a PERCIPIENT witness. He is not an expert witness. Dr. Auerbach will be testifying as to his perceptions as a witness and his opinions based on his perceptions as a lay witness per Evidence Code section 800. He is not anticipated to be giving any expert opinions.” (Plaintiff’s August 25, 2022 Opp’n to Defendant’s Motion in Limine No. 4 at p. 4:5-8.) 

Thus, Plaintiff raised similar arguments in opposition to Defendant’s Motion in Limine No. 4 as those that are raised in the instant motion. As set forth above, the Court’s January 23, 2023 minute order provides as to Defendant’s Motion in Limine No. 4, “the proffer as to the testimony by Dr. Daniel Auerbach was that he would testify that he called Plaintiff nearly daily to check on her…The Court finds that this testimony is not relevant and is excluded.”

Plaintiff argues in the instant motion that Dr. Auerbach’s percipient testimony is relevant. Plaintiff notes that she alleges a cause of action for intentional infliction of emotional distress. Plaintiff asserts that “Dr. Auerbach has known Ms. Turkel for many years and both he and Ms. Turkel responded to Defendant’s actions by changing their behavior. The mere fact Dr. Auerbach changed his normal course to regularly check on Ms. Turkel is relevant to this case. Further, Dr. Auerbach will testify as to Ms. Turkel’s state during telephone calls, the change in Ms. Turkel before the incident with Defendant and after the incident with Defendant.” (Mot. at  p. 5:1-6.)

In the opposition, Defendant asserts that allowing Dr. Auerbach to testify as a lay witness will prejudice Defendant. Specifically, Defendant asserts that “[t]estimony as to Plaintiff’s post trade-in mental state is expert witness testimony intended to undergird Plaintiff’s claim of emotional distress.” (Opp’n at p 5: 10-12.) The Court agrees. Defendant also asserts that “Dr. Auerbach cannot testify as a lay witness as to the change in Plaintiff’s mental state, since such testimony would necessitate comparing her mental state before and after the subject incident, which would require him to draw on his prior observations and opinions during treatment.” (Opp’n at p. 5:13-16.) Plaintiff does not respond to this point in the reply.

In addition, Defendant contends that “if Dr. Auerbach is permitted to testify as a lay witness only, he cannot be cross-examined into the doctor/patient relationship, thus creating a protective shield against delving into Plaintiff’s prior mental state. JFL would be precluded, for example, to explore other independent stressors in plaintiff’s life while she was seeing Dr. Auerbach for medical advice…Presenting Dr. Auerbach to the jury as a purported lay witness, in this unique circumstance, would create juror confusion, since it would be impossible for the jury to clearly distinguish between lay and expert testimony. It is likely, given Dr. Auerbach’s 20 year doctor/patient relationship with Plaintiff, the jury’s inclination will be to accept Dr. Auerbach’s testimony as though he were giving his expert opinion even if he were presented as testifying only as a friend.” (Opp’n at p. 5:21-6:6.) Plaintiff also does not respond to this point in the reply. 

Plaintiff also cites to Huntley v. Foster (1995) 35 Cal.App.4th 753, 754, where a “party in a personal injury action intend[ed] to have her treating doctor testify as to her injuries, treatment, and prognosis.” The Court of Appeal considered, “[m]ust she provide opposing counsel an expert witness declaration required by Code of Civil Procedure section 2034, subdivision (a)(2) for retained experts?” and concluded, “No. A treating doctor is not a retained expert for purposes of section 2034.” Plaintiff contends that she “always intended Dr. Auerbach to be a percipient witness,” and “suggests that, rather than excluding any and all testimony from Dr. Auerbach, that a limiting order similar to that in the Huntley case is the solution.” (Mot. at         p. 5:19-21.) But the Court finds that Huntley is distinguishable, as Plaintiff is not seeking to have Dr. Auerbach testify as her treating doctor.

Based on the foregoing, the Court does not find that Plaintiff has demonstrated grounds for the Court to reconsider its January 23, 2023 Order pertaining to Defendant’s Motion in Limine No. 4. 

Plaintiff argues that in the alternative, “if the Court believes Dr. Auerbach must be an expert witness in order to testify as to Ms. Turkel’s emotional distress, Plaintiff requests approval to add Dr. Auerbach as a non-retained expert to the designation and the witness list. If deemed preferable by the Court, Plaintiff requests permission to reopen expert disclosure under the discretionary portion of Code of Civil Procedure section 473(b).” (Mot. at p. 2:19-24.)

Code of Civil Procedure section 473, subdivision (b) provides in pertinent part that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

Plaintiff cites to Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1100, where the Court of Appeal considered “whether a party who makes a defective demand for the exchange of expert trial witnesses pursuant to Code of Civil Procedure section 2034, may obtain relief pursuant to section 473.” In Zellerino, the “defendants, unaware that plaintiff had not retained any medical experts, served a discovery demand for an exchange of expert witnesses. The demand was early. When plaintiff served a written objection that the demand was untimely, defendants obtained relief by a motion pursuant to section 473. The trial court ordered plaintiff to disclose her expert witnesses. Plaintiff ignored the order. A few days before trial plaintiff retained and disclosed two expert witnesses. At trial, as a sanction for her abuse of the discovery system, the court refused to permit plaintiff to introduce the testimony of these experts. Nonsuit was granted to defendants.” (Id. at p. 1100-1101.) The Court of Appeal affirmed. (Id. at p. 1101.)

The Zellerino Court found that “[r]elief under section 473 is unavailable when the discovery act provides analogous, if more limited, relief. As nothing in the section governing expert witness disclosure provides for relief from failure to file a timely demand for exchange of expert trial witnesses information, relief is available under section 473. In this case the court was authorized to grant relief under section 473.” (Zellerino v. Brown, supra, 235 Cal.App.3d at       p. 1107.)

However, here, Plaintiff is not seeking relief from the failure to file a timely demand for exchange of expert trial witnesses information. Rather, Plaintiff seeks in the alternative to add Dr. Auerbach as a non-retained expert to Plaintiff’s witness designation. The Court notes that 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.” “The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2034.710, subd. (c).) In addition, 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 does not find that Plaintiff has complied with the foregoing requirements for a motion to submit tardy expert witness information.

Lastly, Defendant asserts that the instant motion “is frivolous and the court has discretion to award sanctions under Cal. Code of Civil Procedure § 128.7.” (Opp’n at p. 8:17-18.) The Court does not agree that the motion is frivolous and thus declines to award sanctions.

Conclusion

Based on the foregoing, Plaintiff’s motion is denied without prejudice as to Plaintiff filing a motion for leave to submit tardy expert witness information. 

Plaintiff is ordered to provide notice of this Order.

DATED:  March 29, 2023                              ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court