Judge: Theodore R. Howard, Case: 20-11755106, Date: 2023-07-20 Tentative Ruling

Defendants Jorge Jimenez and Miguel Romero Rocha’s (“Defendants”) motion for leave to augment expert witness list is DENIED.

Defendants state in the motion that relief is sought pursuant to Code Civ. Proc. § 2034.610.  In the Reply, Defendants state a separate basis for relief is Code Civ. Proc., § 2034.710.  The motion fails under both sections.

Although Defendants have shown that the failure to designate a life care expert was the result of defense counsel’s mistake and inadvertence, Defendants failed to show that they promptly sought leave to augment their expert witness list after discovering the error.  (Code Civ. Proc., §§ 2034.620(c)(2)(A), 2034.720(c)(2).)

Defendants’ counsel discovered the error at the latest on April 14, 2023, when Plaintiff’s life care expert was deposed.  (Dilag Decl. ¶ 14; Nalbandyan Decl. ¶ 9, Ex. G.)  This motion was not filed until 35 days later, on May 19, 2023.  The only excuse defense counsel makes is that he was searching for and retaining an expert and then meeting and conferring with Plaintiff’s counsel.  While some delay for meeting and conferring is reasonable, based on the correspondence submitted with the motion, by April 25, 2023, Defendants had located a life care expert and Plaintiff’s counsel had indicated to Defendants’ counsel that Plaintiff was not agreeable to the tardy supplemental designation.  (Exs. D-E to Dilag Decl.)  Defendants then waited another 24 days before filing the present motion.  Defendants offer no explanation for this delay.  These circumstances do not demonstrate that Defendants promptly sought leave to augment their expert witness list after discovering the need for such expert.

In addition, Defendants had an opportunity to bring this issue to the Court’s attention when they filed their ex parte application to continue trial on April 17, 2023, but they failed to do so.  (See ROA 90.)  Defendants do not explain this failure, despite the issue being raised by Plaintiff in the opposition.

Sections 2034.620 and 2034.720 state that the court shall grant leave to augment or leave to submit tardy expert witness information only if all of the stated conditions are satisfied.  Here, the record does not show that Defendants promptly sought leave to submit the expert information after deciding to call the life care expert or after learning of the mistake.  Thus, all of the statutory conditions have not been satisfied and the motion must be denied.  (See Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 421 [“Conversely, the trial court shall not grant leave to submit late expert witness information if any of the statutory conditions are not satisfied.”].)

In addition, as Plaintiff points out, on April 18, 2023, the Court granted Defendants’ ex parte request to continue trial, but denied Defendants’ request to reopen discovery.  The minute order at ROA 96 specifically stated that discovery was to remain closed except for certain non-designated expert depositions.  Thus, at the time Defendants filed this motion on May 19, 2023, discovery was closed, and, as such, the requested relief would require a reopening of discovery.  However, Defendants have not moved to re-open discovery, or attempted the showing required under Code Civ. Proc. § 2024.050.  Without a reopening of discovery, the relief requested is unavailable to Defendants.  (See Cottini, supra, 226 Cal.App.4th at 421.)

Accordingly, the motion is DENIED.

The Court finds sanctions are not warranted here.  Thus, Plaintiff’s request for sanctions is DENIED.  (C.C.P. § 2034.630.)

Counsel for Defendants to give notice.