Judge: William A. Crowfoot, Case: 20STCV24184, Date: 2022-09-27 Tentative Ruling

Case Number: 20STCV24184    Hearing Date: September 27, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On June 25, 2020, Plaintiff Kyra De Mesa (“Plaintiff”), a minor by and through her Guardian Ad Litem, John De Mesa, filed the instant dog bite action against Defendant David Benjamin James (“James”) for (1) Strict Liability Pursuant to Civil Code § 334, (2) Premises Negligence, and (3) General Negligence.

          On March 23, 2021, James filed a Cross-Complaint against Cross-Defendant Kerstin O’Leary (“O’Leary”) (erroneously sued as “Kersten O’Leary”) for (1) Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief.

          On April 29, 2022, Plaintiff substituted Doe1 for O’Leary as to third cause of action only.

          On July 29, 2022, O’Leary filed the instant motion for leave to augment expert witness designation and add Dr. Terry Dubrow (“Dr. Dubrow”) as a retained witness. Plaintiff filed an opposition brief on August 15, 2022.  O’Leary filed a reply brief on August 19, 2022.   

          At the hearing on August 26, 2022, the Court continued the hearing for further briefing.  O’Leary and Plaintiff filed supplemental briefs on September 9, 2022.  Although James did not file an opposition brief before the hearing and did not argue at the hearing, James filed a supplemental opposition brief on September 12, 2022. 

II.      LEGAL STANDARDS

On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to (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; and/or (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. (Code Civ. Proc., § 2034.610, subd. (a).) This motion shall be made a sufficient time in advance to permit the deposition of any expert to whom the motion relates to be taken before the discovery cut-off, unless exceptional circumstances exist. (Code Civ. Proc., § 2034.610, subd. (b).) The motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2034.610, subd. (c).)

The court shall grant leave to augment or amend an expert witness list 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.

(c) The court has determined either of the following:

(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

(d) Leave 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.

(Code of Civ. Proc. § 2034.620.)

III.     DISCUSSION

          O’Leary seeks to reopen discovery to allow her to augment her expert designation to include Dr. Dubrow as a retained witness. O’Leary makes the motion pursuant to Code of Civil Procedure section 2034.610 on the grounds that no prejudice will accrue to Plaintiff if the requested relief is granted because codefendant James has also retained Dr. Dubrow.

In its previously-issued tentative ruling, the Court found that O’Leary met the requirements of Code of Civil Procedure sections 2034.610 and 2034.620.  As O’Leary pointed out in her moving papers, James has already identified Dr. Dubrow as an expert and James and O’Leary agreed to split the cost of retention in early June 2022 around June 9, 2022.  Thus, little to no prejudice is likely because there is likely to be no new information that could arise from this retention.  O’Leary further claims that she did not designate the witness due to a mistake by counsel’s staff and promptly filed this motion after learning of the mistake.  

Plaintiff opposes O’Leary’s motion and argues that O’Leary already agreed to retain Dr. Dubrow by June 9, 2022, which is before she served her expert witness designation.  However, in O’Leary’s supplemental brief, O’Leary contends that Dr. Dubrow had not yet been retained until after the initial expert designation was prepared on June 30, 2022.  Therefore, O’Leary argues that the motion to “augment” is proper, as Dr. Dubrow has been “subsequently” retained. 

Although James and O’Leary planned to split the retention fee, it does not appear that O’Leary had retained or paid Dr. Dubrow at the time the initial designation was served.  Specifically, Jenn Bartick, O’Leary’s counsel, states that she had not received any invoices, tax forms, correspondence, or an updated curriculum vitae from Dr. Dubrow and that these are the typical documents that are sent over upon retention even when the retention is split between parties.  (Motion, Bartick Decl., ¶ 9.)  Additionally, there is no evidence that Plaintiff will be prejudiced at trial because Dr. Dubrow was already designated as an expert by James.  

IV.     CONCLUSION

Accordingly, O’Leary’s motion is GRANTED.  O’Leary is to serve an amended designation within 20 days of the date of this order. 

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.