Judge Teresa A. Beaudet, Case Number: BC689037, Date: 2023-08-22 Tentative Ruling

RICK SIEGEL, Plaintiff, vs. DAVID A. ALESSI, et al. Defendants.	Case No.:	BC689037
	Hearing Date:	September 1, 2023
	Hearing Time: 10:00 a.m. [TENTATIVE] ORDER RE: EX-PARTE APPLICATION FOR LEAVE TO SERVE A LATE RESPONSIVE EXPERT WITNESS DESIGNATION OR, IN THE ALTERNATIVE, TO SET A HEARING ON THE ISSUE ON SHORTENED TIME; DEFENDANT DAVID A. ALESSI’S MOTION TO AUGMENT EXPERT WITNESS DESIGNATION
AND RELATED CROSS-ACTIONS

On January 3, 2018, Plaintiff Rick Siegel (“Siegel”) filed this action against Defendants

David A. Alessi (“Alessi”); Robert A. Koenig (“Koenig”); Alessi & Koenig; Alessi & Koenig, a Professional Corporation; and Alessi & Bayard. Siegel filed the operative Second Amended Complaint on July 29, 2019, asserting causes of action for (1) breach of fiduciary duties, (2) constructive fraud, (3) intentional misrepresentation, and (4) legal malpractice.

On March 8, 2019, Koenig filed a Cross-Complaint against Alessi for indemnity and contribution. On February 10, 2020, Alessi filed a Cross-Complaint against a number of Cross-Defendants, asserting causes of action for equitable indemnity and comparative indemnity. Koenig and Alessi are referred to jointly herein as the “Defendants.”

On July 28, 2023, Koenig filed an ex parte application for an order “permitting him to augment his expert witness designation and designate an expert to respond to Plaintiff’s standard of care expert or, in the alternative, an order deeming this ex-parte application as his initial motion and an order setting a hearing and briefing schedule on shortened time.” On July 31, 2023, Alessi filed a joinder in Koenig’s ex parte application.

On July 31, 2023, the Court issued an Order on Koenig’s ex parte application, which provides that “[t]he hearing on Mr. Koenig’s ex-parte application is continued to 8/22/23…By 8/1/23, Def. David Alessi will file and email serve his motion to augment the expert designation. The opposition to both motions may be filed and served by email no later than 8/10/2023. A reply may be filed and served by email no later than 8/15/23…”

In addition, on July 31, 2023, the Court issued a minute order providing, inter alia, as follows:

“The Ex Parte Application for leave to augment expert witness designation filed by Robert A. Koenig on 07/28/2023 is Granted in Part.

Pursuant to the request of moving party, the Hearing on Ex Parte Application for leave to

augment expert witness designation scheduled for 07/31/2023 is continued to 08/22/23 at 03:00 PM in Department 50 at Stanley Mosk Courthouse.

The opposition to both motions may be filed and served by email no later than August 10, 2023. A reply may be filed and served by email no later than August 15, 2023.

Courtesy Copies of all the papers must be delivered to Department 50 by August 15, 2023. By August 3, 2023, the defendant will file and email serve his motion to augment the expert designation…”

The hearing was then continued from August 22, 2023 to September 1, 2023. (See August 22, 2023 minute order.)

On August 2, 2023, Alessi filed a motion for leave to augment his expert witness designation. On August 9, 2023, Siegel filed an “opposition to Defendants’ motions for leave to

augment their respective expert witness lists.” Koenig filed a reply in support of his application on August 15, 2023, and Alessi filed a reply in support of his motion on August 16, 2023.

In support of his application, Koenig cites to Code of Civil Procedure section 2034.610, which provides that “[o]n motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: (1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. (2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.” ((Id., § 2034.610, subd. (a).)

Pursuant to Code of Civil Procedure section 2034.610, subdivision (b), “[a] motion under subdivision (a) shall be made at 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.” In addition, “[t]he motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2034.610, subd. (c).)

Koenig submits the declaration of his counsel in support of the application, who states that “[a] demand for exchange of expert witness designations was made in this action, and the date for the exchange was continued by agreement.” (Kurtz Decl., ¶ 4, p. 4.) Koenig’s counsel further states that “Mr. Koenig timely designated a real estate expert for issues of damages. Mr. Alessi timely designated an appraiser for issues of damages. Mr. Siegel designated an appraiser and standard of care expert.” (Kurtz Decl., ¶ 5, p. 4.) Koenig’s counsel states that “[n]either Mr. Koenig nor Mr. Alessi counter designated a standard of care expert in the statuary [sic] time period.” (Kurtz Decl., ¶ 6, p. 4.) Koenig’s counsel asserts that “[s]peaking for Mr. Koenig, the designation did not seem to make that [sic] necessary at the time.” (Kurtz Decl., ¶ 6, p. 4.)

Koenig’s counsel also asserts that “[a]fter agreed upon extensions of time, Plaintiff’s standard of care expert, Brandon Krueger, was deposed on June 13, 2023, and the transcript was prepared on June 29, 2023. The testimony was surprising, and some of his stated opinions were beyond all expectations. As a result, Mr. Koenig stated [sic] to consider and search for a standard of care expert to address some of the rather bold opinions stated by Mr. Krueger.” (Kurtz Decl., ¶ 5, p. 5.) Koenig’s counsel states that “Mr. Koenig has engaged Mr. David Parker, of Parker Shaffie LLP, who is willing to serve as an expert if allowed.” (Kurtz Decl., ¶ 6, p. 5.) Koenig indicates that “Mr. Parker will testify on the issues of Defendants’ compliance with the applicable standards of care and ethical obligations in connection to the issues raised in this action. He will also address and challenge opinions and testimony of Plaintiff’s standard care expert.” (Kurtz Decl., ¶ 6, p. 5, Ex. 2; Kurtz Decl., ¶ 2(b).)

Koenig asserts that there would no prejudice to Siegel in granting the instant motion, because there is sufficient time to depose Mr. Parker. The trial in this action is currently set for October 18, 2023.

Alessi submits the declaration of his counsel in support of the motion. Alessi’s counsel states that “[o]n October 28, 2023, I timely served Defendant Alessi’s Expert Witness Designation and Expert Witness Declaration.” (Ashby Decl., ¶ 4.) He states that “Mr. Alessi timely designated a real property appraiser for the issue of damages. Mr. Koenig designated a real estate expert for the issue of damages. Plaintiff designated a real property appraiser and a standard of care expert.” (Ashby Decl., ¶ 5.)

Alessi’s counsel further states that he “took the deposition of Plaintiff’s designated standard of care witness, Brandon Krueger, on June 13, 2023.” (Ashby Decl., ¶ 8.) Alessi’s counsel asserts that “[t]he court reporting service provided the transcript of the deposition of Mr. Krueger on June 30, 2023. The testimony of Mr. Krueger was surprising and he expressed some bold opinions that had not been identified or suggested in the course of the litigation. After the opportunity to review the transcript of the deposition of Mr. Krueger, through counsel, Mr. Alessi has undertaken to identify, clear conflicts with, and retain a standard of care expert to respond to the opinions Mr. Krueger expressed.” (Ashby Decl., ¶ 10.)

Alessi asserts that because he “is seeking to augment his expert designations to respond to [Siegel’s] standard of care expert, [Siegel] already has an expert retained to testify on the subject matter. So, allowing this augmentation will not prejudice [Siegel].” (Mot. at p. 1:16-18.) Alessi also asserts that Siegel will have sufficient time to depose Alessi’s proposed expert before the October 18, 2023 trial date.

“The court shall grant leave to augment or amend an expert witness list or declaration 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 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) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

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

Pursuant to Code of Civil Procedure section 2034.620, subdivision (d), “[l]eave to augment or amend 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.”

In the opposition, Siegel contends that “[n]either Defendant has satisfied the conditions of Section 2034.620.”

Koenig counters that “Code of Civil Procedure § 2034.620(a) favors augmentation because Plaintiff has not proven any reliance on the lack of a counter-designated standard of care expert.” (Reply at p. 4:2-4.) In the opposition, Siegel argues that he “fully relied on the lists of expert witnesses the parties exchanged,” and that “[t]he lists informed [Siegel’s] strategy from that time on.” (Opp’n at p. 16:7-8.) But Siegel does not appear to provide any evidence to support this assertion.

Koenig also asserts that Code of Civil Procedure section 2034.620, subdivision (b) favors augmentation. As set forth above, Koenig asserts in the application that there would be no prejudice to Siegel from allowing Koenig to augment his expert witness designation, as Siegel would have sufficient time to depose Koenig’s proposed expert. Siegel does not appear to dispute that he will have sufficient time to depose Koenig’s proposed expert.

Siegel asserts that “[g]ranting leave for Mr. Koenig to designate an additional expert, to give legal opinions and conduct discovery that he had not previously seen fit to undertake, would be unjust.” (Opp’n at p. 16:13-15.) The Court notes that it is unclear what discovery Siegel is referring to. Siegel also asserts that “[f]or Mr. Koenig to now add another lawyer to opine as an expert at trial would require [Siegel] to work up a new and different case. It would require more depositions. [Siegel] and the Defendants would all have to incur thousands of dollars more in pre-trial expenses; and, depending upon the new testimony that would be elicited, the parties might have to again stipulate to a further waiver of the five-year rule.” (Opp’n at p. 16:18-22.) The Court notes that Siegel does not specify how granting the instant application and motion would require Siegel to “work up a new and different case.”

In the reply, Koenig reiterates his position that “[t]here is obviously ample time to depose Mr. Parker,” and that “[g]iven the time to trial, there would be no legal prejudice caused by designating the expert now as opposed to the time of the original designations.” (Reply at p. 1:24-27.) In addition, Koenig states that “[i]f the cost of taking the deposition now, as opposed to earlier, is a factor, Mr. Koenig is willing to pay the depositor cost…” (Reply at p. 2:1-2.)

Koenig also asserts that Code of Civil Procedure section 2034.620, subdivision (c)(1) is satisfied. As set forth above, Koenig’s counsel states that “Plaintiff’s standard of care expert, Brandon Krueger, was deposed on June 13, 2023, and the transcript was prepared on June 29, 2023. The testimony was surprising, and some of his stated opinions were beyond all expectations. As a result, Mr. Koenig stated [sic] to consider and search for a standard of care

expert to address some of the rather bold opinions stated by Mr. Krueger.” (Kurtz Decl., ¶ 5, p. 5.) In the opposition, Siegel asserts that “[h]ad Koenig and his attorney exercised reasonable diligence, they would have known at the time the parties exchanged expert witness lists, that experts are almost always needed to testify about standard of care issues.” (Opp’n at p. 13:8-10, emphasis omitted.) Siegel cites to O’Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 236, where the Court of Appeal noted that “[t]he general rule is that expert evidence is required to establish legal malpractice.”

Koenig also asserts that the standards of Code of Civil Procedure section 2034.620, subdivision (c)(2) are satisfied. As discussed, Koenig’s counsel states that the testimony of Plaintiff’s standard of care expert, Brandon Krueger, was “surprising,” and that “some of his stated opinions were beyond all expectations.” (Kurtz Decl., ¶ 5, p. 5.) Koenig’s counsel indicates that the transcript of Mr. Krueger’s deposition was prepared on June 29, 2023. (Kurtz Decl., ¶ 5, p. 5.) Koenig’s instant application was filed soon thereafter, on July 28, 2023. Koenig’s application also includes a proposed augmented expert witness designation, which indicates that Koenig seeks to designate as a retained expert David Parker of Parker Shaffie LLP. (Kurtz Decl., ¶ 6, p. 5, Ex. 2.)

In the opposition, Siegel notes that Koenig does not identify in the application the testimony of Siegel’s expert that Koenig asserts was “surprising.” In connection with the reply, Koenig submits the declaration of his counsel, who asserts that “[t]he testimony of Plaintiff’s expert was a genuine surprise. A significant aspect of Mr. Koenig’s defense on liability issues were the facts that (a) he was not a member of the firm that represented plaintiff, (b) his signature was forged on pleadings for Plaintiff, and (c) he was never a lawyer repenting [sic] Plaintiff. Plaintiff’s expert presented surprising testimony that he would have had duties despite these facts…This could not have been predicted from the designation and motivated Mr. Koenig to seek leave to designate a counter expert.” (Suppl. Kurtz Decl., ¶ 4.) The Court notes that as this evidence was submitted for the first time in connection with the reply, Siegel has not had the opportunity to respond to it.

However, the Court finds that Koenig has made a sufficient showing that he “would not in the exercise of reasonable diligence have determined to call” his proposed expert, Mr. Parker. (Code Civ. Proc., § 2034.620, subd. (c)(1).) As discussed, Koenig’s counsel states that as a result of Mr. Krueger’s testimony on June 13, 2023, “Mr. Koenig stated [sic] to consider and search for a standard of care expert to address some of the rather bold opinions stated by Mr. Krueger.” (Kurtz Decl., ¶ 5, p. 5.)

As to Alessi’s motion, Siegel notes that Alessi does not identify in the motion the expert that Alessi seeks to designate. As discussed, Code of Civil Procedure section 2034.620, subdivision (c)(2) provides that “[t]he court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:…(c) The court has determined either of the following:…(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following: (A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony. (B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.” (Emphasis added.)

In the reply, Alessi asserts that under Code of Civil Procedure section 2034.620, subdivision (c)(2)(B), “the designation is necessarily served after the motion seeking leave to augment is filed.” (Reply at p. 4:2-3, emphasis in original.) As set forth above, per Code of Civil Procedure section 2034.620, subdivision (c)(2), the Court must “determine[]” that the moving party “[s]ought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony,” and “[p]romptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.” (Emphasis added.) The Court does not see how it could determine that a copy of the proposed expert witness information was “served” (past tense) if Alessi proposes to serve the designation at some future time.

However, the Court notes that on August 29, 2023, Alessi’s counsel filed a supplemental declaration in support of Alessi’s motion. Alessi’s counsel’s supplemental declaration states that “[o]n August 28, 2023, I, on behalf of Mr. Alessi served a [Proposed] Augmented Expert Witness Designation on counsel for plaintiff Rick Siegel and counsel for defendant Robert Koenig.” (Suppl. Ashby Decl., ¶ 4, Ex. 3.) Alessi’s counsel indicates that “Mr. Alessi’s [Proposed] Augmented Expert Witness Designation designates Joel Osman of Parker Shaffie LLP to testify on the following topics: ‘Mr. Osman[] will testify on issues of defendants’ compliance with the applicable standards of care and ethical obligations in connection to the issues presented in this action. Mr. Osman will also address and respond to opinions of plaintiff Rick Seigel’s standard of care expert, Brandon Krueger.” (Suppl. Ashby Decl., ¶ 5.)

In the opposition, Siegel also asserts that Alessi provided no factual support for the assertion that “[t]he testimony of Mr. Krueger was surprising…” (Ashby Decl., ¶ 10.) But Siegel does not appear to dispute that Alessi “would not in the exercise of reasonable diligence have determined to call that expert witness…” (Code Civ. Proc., § 2034.620, subd. (c)(1).) As discussed, Alessi’s counsel asserts that Siegel’s expert, Mr. Krueger, “expressed some bold opinions that had not been identified or suggested in the course of the litigation,” and that “[a]fter the opportunity to review the transcript of the deposition of Mr. Krueger, through counsel, Mr. Alessi has undertaken to identify, clear conflicts with, and retain a standard of care expert to respond to the opinions Mr. Krueger expressed.” (Ashby Decl., ¶ 10.)

Based on the foregoing, the Court finds that Koenig and Alessi have demonstrated good cause to augment their respective expert witness lists.

augment his expert witness designation is granted. Pursuant to ¿Code of Civil Procedure section 2034.620, subdivision (d)¿, the Court grants Koenig’s application on the condition that Koenig make his expert witness available immediately for a deposition within 20 days of the date of this Order.

In addition, based on the foregoing, Alessi’s motion for leave to augment his expert witness designation is granted. Pursuant to ¿Code of Civil Procedure section 2034.620, subdivision (d)¿, the Court grants Alessi’s motion on the condition that Alessi make his expert witness available immediately for a deposition within 20 days of the date of this Order.

Superior Court of California

County of Los Angeles

Department 50