On 11/17/2015 IMAGECRAFT PRODUCTIONS INC filed a Contract - Other Contract lawsuit against HOLLYWOOD CENTER STAGES INC ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is ELAINE LU. The case status is Other.
IMAGECRAFT PRODUCTIONS INC
HOLLYWOOD CENTER STAGES INC
STUDIO FACILITIES MANAGEMENT INC.
STUDIO PRODUCTION CENTER INC.
BORTON PETRINI LLP
GIDEON ASHLEIGH KATHLEEN
LIU JEFFREY ZENKANG
MORALES EDWARD JESUS
BRENNER MARK E. ESQ.
JUSTICE MICHAEL LEE
2/10/2021: Request for Dismissal
2/11/2021: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE (BT 03/01/2021))
1/25/2021: Order - ORDER RE: MOTIONS TO AUGMENT DEFENDANT RIDGELY CONLANS EXPERT WITNESS DESIGNATION
1/25/2021: Minute Order - MINUTE ORDER (HEARING ON MOTION TO AUGMENT RECORD MOTION TO AUGMENT DEFENDA...)
12/11/2020: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO ADVANCE HEARING ON MOTION ...)
12/8/2020: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO ADVANCE HEARING ON MOTION TO AUGMENT EXPERT WITNESS DECLARATION; DECLARATION OF MARK E. BRENNER, ESQ.; PROPOSED ORDER
11/30/2020: Motion re: - MOTION RE: TO AUGMENT DEFENDANT RIDGELY CONLAN'S EXPERT WITNESS DECLARATION (CCP 2034.610(A)(1) AND 2034.620]; DECLARATION OF MARK E. BRENNER, ESQ.
11/16/2020: Notice - NOTICE OF DISASSOCIATION OF COUNSEL
10/27/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: BANKRUPTCY; NON-APPEARANCE CASE REVIEW)
10/21/2020: Declaration - DECLARATION OF EDWARD J. MORALES RE: BANKRUPTCY; REQUEST FOR TRIAL SETTING CONFERENCE
9/9/2020: Notice Re: Continuance of Hearing and Order
7/29/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: BANKRUPTCY)
7/22/2020: Declaration - DECLARATION OF EDWARD J MORALES
2/26/2020: Stipulation - No Order - STIPULATION - NO ORDER STIPULATION RE: REMOVAL OF ALL PARTIES AND ALL CLAIMS
2/18/2020: Minute Order - MINUTE ORDER (STATUS CONFERENCE RE: BANKRUPTCY)
2/14/2020: Notice - NOTICE OF ERRATA
2/13/2020: Notice - NOTICE TO STATE COURT REGARDING REMOVAL OF ACTION TO UNITED STATES DISTRICT COURT
11/20/2019: Notice - NOTICE OF BANKRUPTCY FILING AND OF AUTOMATIC STAY PURSUANT TO 11 U.S.C.
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Augment Record (MOTION TO AUGMENT DEFENDANT RIDGELY CONLAN?S EXPERT WITNESS DECLARATION [CCP 2034.610(a)(1) & 2034.620];) - Not Held - Continued - Party's MotionRead MoreRead Less
Docketat 09:30 AM in Department 26, Elaine Lu, Presiding; Non-Jury Trial ((4-5 day est.)) - Not Held - Vacated by CourtRead MoreRead Less
Docketat 11:00 AM in Department 26, Elaine Lu, Presiding; Final Status Conference ((BT 03/01/2021)) - Not Held - Vacated by CourtRead MoreRead Less
DocketMinute Order ( (Final Status Conference (BT 03/01/2021))); Filed by ClerkRead MoreRead Less
Docketat 09:00 AM in Department 26, Elaine Lu, Presiding; Final Status Conference ((BT 03/01/2021)) - Not Held - Continued - StipulationRead MoreRead Less
DocketRequest for Dismissal; Filed by Imagecraft Productions, Inc (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Motion to Augment Record (MOTION TO AUGMENT DEFENDANT RIDGELY CONLAN?S EXPERT WITNESS DECLARATION [CCP 2034.610(a)(1) & 2034.620];) - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion to Augment Record MOTION TO AUGMENT DEFENDA...)); Filed by ClerkRead MoreRead Less
DocketOrder (RE: MOTIONS TO AUGMENT DEFENDANT RIDGELY CONLAN?S EXPERT WITNESS DESIGNATION); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 26, Elaine Lu, Presiding; Hearing on Ex Parte Application (TO ADVANCE HEARING ON MOTION TO AUGMENT EXPERT WITNESS DECLARATION; DECLARATION OF MARK E. BRENNER, ESQ.; PROPOSED ORDER) - HeldRead MoreRead Less
DocketProof of Service (not Summons and Complaint); Filed by Imagecraft Productions, Inc (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE AND OSC RE FILING PROOFS OF SERVICERead MoreRead Less
DocketCOMPLAINT FOR DAMAGES 1. BREACH OF WRITTEN CONTRACT; ETCRead MoreRead Less
DocketComplaint; Filed by Imagecraft Productions, Inc (Plaintiff)Read MoreRead Less
DocketDEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEESRead MoreRead Less
DocketCIVIL DEPOSITRead MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC601491 Hearing Date: January 25, 2021 Dept: 26
IN ORDER TO IMPLEMENT PHYSICAL DISTANCING AND UNTIL FURTHER NOTICE, THE COURT STRONGLY ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR REMOTELY FOR NON-TRIAL AND NON-EVIDENTIARY MATTERS, INCLUDING THIS MOTION.
IMAGECRAFT PRODUCTIONS, INC.,
HOLLYWOOD CENTER STAGES, INC., et al.,
Case No.: BC601491
Hearing Date: January 25, 2021
[TENTATIVE] order RE:
mOTIONs to Augment defendant ridgely conlan’s expert witness DESIGNATION
On November 17, 2015, Plaintiff Imagecraft Productions, Inc. (“Plaintiff”) filed the instant action. On February 15, 2018, Plaintiff filed the operative second amended complaint against Defendants Hollywood Center Stages, Inc. (“Hollywood”), Ridge Conlan (“Conlan”), and Studio Production Center, Inc. (“SPC”) (collectively “Defendants”), asserting causes of action for (1) breach of contract, (2) common count – account stated, (3) common count – open book account, (4) fraud – intentional misrepresentation, (5) breach of the covenant of good faith and fair dealing, and (6) fraudulent transfer of assets.
On June 29, 2018, the court sustained Conlan’s demurrer to the fourth and fifth causes of action, for fraud – intentional misrepresentation and breach of the covenant of good faith and fair dealing respectfully, without leave to amend. On November 20, 2019, the instant action was stayed pending bankruptcy proceedings. On October 27, 2020, the bankruptcy stay was lifted.
On November 30, 2020, Defendant Conlan filed the instant motion to augment Defendant Conlan’s expert Witness Declaration. On December 11, 2020, the Court granted Conlan’s ex parte application to advance the instant hearing to January 25, 2021. (Minute Order 12/11/20.) Notice was waived at the hearing. (Minute Order 12/11/20.)
No opposition or reply have been filed.
Code of Civil Procedure § 2034.610(a) provides as follows:
On 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:
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.
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 of Civil Procedure § 2034.620 (a)-(c) contains a list of conditions for granting leave to augment. First, a court is to take into account “the extent to which the opposing party has relied on the list of expert witnesses.” Next, the court must determine that the opposing party “will not be prejudiced in maintaining that party’s action or defense on the merits.” Third, the court is required to determine either of the following:
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 witness.
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:
Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.
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.
Finally, leave to augment or amend an expert witness list is conditioned on “the moving party making the expert available immediately for a deposition.” (Code Civ. Proc., § 2034.620(d).) Leave to augment may also be conditioned on any other terms as may be just. (Ibid.)
Defendant Conlan moves to augment his Supplemental Declaration of Expert Witness. Defendant Conlan originally designated Michael Horowitz, CPA (“Horowitz”) as one of its experts. However, on November 6, 2020, Horowitz communicated to Defendant Conlan that he had contracted cancer, and due to Horowitz's cancer treatment schedule, would likely not be able to testify at trial. (Brenner Decl. ¶ 5.) On the same day -- on November 6, 2020 -- Defendant Conlan notified Plaintiff’s counsel by email of Horowitz’s potential unavailability and inquired whether Plaintiff would be amenable to stipulating to substitution of a new expert for Horowitz. (Brenner Decl. ¶ 6.) Plaintiff did not respond. (Brenner Decl. ¶ 6.) Over the next two weeks, Defense counsel attempted to confirm Horowitz’s unavailability and find a substitute expert. (Brenner Decl. ¶ 7.) On November 16, 2020, Defendant Conlan retained substitute expert witness Robert Elvine. On November 23, 2020, Defendant Conlan received a letter confirming Horowitz’s unavailability. (Brenner Decl. ¶ 8, Ex. 1.)
“On November 24, 2020, via electronic and regular mail, [Defense Counsel] notified [Plaintiff’s Counsel] that [Defendant Conlan] had found a replacement for Mr. Horowitz and provided an augmented supplemental witness declaration with the required information for Mr. Elvine. In this letter [Defense Counsel] requested again whether [Plaintiff] would be amenable to adding Mr. Elvine as a defense expert. [Defense Counsel] also offered to make Mr. Elvine available for a deposition.” (Brenner Decl. ¶ 9, Ex. 2.) Defendant Conlan received no response. (Brenner Decl. ¶ 9.) On November 30, 2020, Defense Counsel called Plaintiff’s counsel and discussed the substantive issues involved in the motion. (Brenner Decl. ¶ 10.)
Augmentation of the expert witness designation has been allowed where the expert passed away before trial (see Richaud v. Jennings (1993) 16 Cal.App.4th 81, 89), as well as where the expert’s conclusions and deposition testimony were found to be unexpectedly detrimental to the party offering the expert. (See Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1478.)
Here, Defendant Conlan has shown that Horowitz unexpectedly informed Defendant Conlan that he would no longer be available to testify in this case due to Horowitz’s diagnosis and health issues. Even in the exercise of reasonable diligence, Defense counsel could not have anticipated such a change in availability. Thus, Defendant Conlan has met the requirements of Code of Civil Procedure § 2034.620(c). No prejudice has been raised. Thus, the requirements of Code of Civil Procedure § 2034.620(a) and (b) have also been met. Finally, Defendant Conlan has satisfied the requirements of Code of Civil Procedure § 2034.610(a) by serving Plaintiff with an amended expert designation, including the testimony Robert Elvine is expected to provide. (Brenner Decl. Ex. 2.) Thus, Defendant Conlan’s motion for leave to augment Defendant Conlan’s expert witness declaration to replace Michael Horowitz with Robert Elvine is GRANTED.
Conclusion and Order
Based on the foregoing, Defendant Conlan’s motion to augment Defendant Conlan’s expert witness declaration to replace Michael Horowitz with Robert Elvine is GRANTED.
Moving Party is ordered to provide notice of this order and file proof of service of such within 10 days of this hearing.
DATED: January 25, 2021 ___________________________
Judge of the Superior Court
Get Deeper Insights on Court Cases