Judge: William A. Crowfoot, Case: 19STCV24400, Date: 2022-10-05 Tentative Ruling

Case Number: 19STCV24400    Hearing Date: October 5, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On July 12, 2019, plaintiff Eugenia Cardona Fuentes (“Plaintiff”) filed this action against defendants Rene Soberanis (“Defendant”) and Los Angeles County Metropolitan Authority (“Metro”).  On September 17, 2019, Plaintiff filed a First Amended Complaint.  On November 1, 2019, Plaintiff filed the operative Second Amended Complaint.  Plaintiff alleges she sustained injuries from falling inside a moving bus on January 13, 2019. 

Trial is currently scheduled for November 7, 2022.  On September 7. 2022, Metro filed this motion for leave to submit tardy expert witness information and add Gregory Yoshida, M.D. (“Dr. Yoshida”).  The statutory basis for Metro’s motion is Code of Civil Procedure section 2034.710(a).  The factual basis for Metro’s motion is its recent discovery on August 12, 2022, that Plaintiff’s expert, Kamran Parsa, M.D. (“Dr. Parsa”), a board-certified neurological surgeon, is recommending Plaintiff for neck surgery.  Metro argues it should be able to designate Dr. Yoshida to address Dr. Parsa’s recommendation for surgery because: (1) Plaintiff never mentioned spine or neurological surgery in her expert witness designation, (2) Dr. Parsa did not prepare any reports or produce any notices as part of his “expert file”, and (3) there was no suggestion in Plaintiff’s medical records and discovery responses that neck surgery would be recommended, as the documents only refer to orthopedic injuries and treatments.  Metro argues the failure to include Dr. Yoshida as an expert witness was due to surprise or excusable neglect. 

As an initial matter, the Court addresses whether this motion was brought under the correct statute.  Metro’s motion is based on Code of Civil Procedure section 2034.710 and requests leave to submit a tardy expert witness designation.  This section is intended to be used in circumstances where a party has wholly failed to submit expert witness information on the date specified for the mutual and simultaneous exchange of experts.  (Code Civ. Proc., § 2034.710, subd. (a).)  The 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, and (2) sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect; and (d) the order is conditioned on the moving party making the expert available immediately for a deposition, 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.  (Code Civ. Proc., § 2034.720.)

Plaintiff opposes Metro’s motion on grounds that the motion was brought under the incorrect statute because Metro timely participated in the exchange on June 30, 2022.  Instead, the correct statutory basis for this motion is CCP section 2034.610, which permits a party to file a motion seeking leave to “augment” its expert witness list. 

In its reply brief, Metro argues that regardless of which statute is appropriate, the legal standard is the same.  The Court agrees that the only material difference between the statutes is that in order to submit a tardy expert witness list, a moving party must show that it failed to submit the expert witness list as a result of “mistake, inadvertence, surprise, or excusable neglect” whereas a motion to  “augment” an expert witness list requires the moving party show either: (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, or (2) the moving party failed to determine to offer that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 2034.620.)  The Court additionally notes that Metro filed a motion to augment its expert witness list under section 2034.620 on September 30, 2022, and it is scheduled for hearing on February 1, 2023.  Here, Metro argues that the failure to include an expert witness that can provide an opinion on Plaintiff’s anticipated neck surgery is due to surprise and excusable neglect.  (Motion, 8:22-0:6.)  Therefore, the legal standard for a motion brought under section 2034.720 and section 2034.620 is, for all purposes, identical.  Accordingly, the Court addresses the motion on its merits, irrespective of Metro’s erroneous labeling. 

In opposing Metro’s arguments on the merits, Plaintiff argues that Metro could not have been surprised by the surgery recommendation because Plaintiff’s cervical and lumbar spine injuries have been in controversy since December 2019.  However, nowhere in Plaintiff’s opposition brief can Plaintiff identify any instance in which surgery was indicated.  Plaintiff was evaluated by Pasquale Montesano, M.D. (“Dr. Montesano”), a board-certified orthopedic spine surgeon, who recommended medial branch blocks at C4-C7 levels.  (Opp., 9:7-11.)  She also underwent multiple “trigger point injections.”  But, as Metro argues, these injection procedures are not the equivalent of surgery, but are outpatient procedures.  (Reply, 3:20-24.) 

While there may not have been any surprise that Plaintiff’s expert would provide an opinion on Plaintiff’s orthopedic injuries, the Court finds that Metro was sufficiently surprised that Plaintiff is now claiming a need for neurosurgery. 

As for whether Plaintiff’s relied upon Metro’s expert witness list or would suffer any prejudice, the Court finds that these factors are insufficient to warrant a denial of Metro’s motion.  First, Plaintiff does not argue that she will be prejudiced.  Second, Plaintiff argues she chose not to depose Cynthia Chabay, M.D. (“Dr. Chabay”) after deposing Metro’s orthopedic surgeon, Stuart Gold, M.D. (“Dr. Gold”) and obtaining Dr. Gold’s testimony on neurogenic pain.  (Reply, 13:3-10.)  Since trial is currently scheduled for November 7, 2022, Plaintiff has ample time to depose Dr. Chabay, if Plaintiff chooses to do so in light of Metro’s addition to its expert witness list.

Accordingly, Metro’s motion is GRANTED.  Metro is ordered to make Dr. Yoshida available for deposition by October 19, 2022.    

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.