Tentative Rulings

Case Number: BC623129    Hearing Date: December 13, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

NOTICE

Judge Goorvitch was sworn-in as a Superior Court Judge on December 15, 2015.  Prior to that time, Judge Goorvitch made the following campaign contributions to Michael N. Feuer: (1) $100 to Mr. Feuer’s 2008 campaign for the 42nd Assembly District on or about November 9, 2007; (2) $100 to Mr. Feuer’s 2010 campaign for the 42nd Assembly District on or about October 19, 2010; and (3) $100 to Mr. Feuer’s 2013 campaign for Los Angeles City Attorney on or about May 30, 2012.  Judge Goorvitch has no personal relationship with Mr. Feuer and has had no communications with Mr. Feuer since he became the City Attorney.  The Court can be fair and impartial in this matter. 

Background

Plaintiff Joanna Aguilar (“Plaintiff”) filed this action against Defendant City of Los Angeles (“Defendant”) after she was involved in a motor vehicle collision with a Los Angeles Police Department vehicle. Defendant served its demand for the exchange of expert witness information on March 18, 2019. At the time, Plaintiff was represented by former counsel, who did not designate any expert witnesses in response. Now, Plaintiff, who is represented by current counsel, seeks leave to designate expert witnesses. Defendant opposes the motion, which is granted.

LEGAL STANDARD

Per Code of Civil Procedure section 2034.710, “On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” (Code Civ. Proc., § 2034.710, subd. (a).) The party seeking leave to serve an untimely expert witness designation must do so prior to the cut-off date for expert witness depositions unless the court concludes that “exceptional circumstances” exist. (Code Civ. Proc., § 2034.710, subd. (b).) The court must grant leave to submit an untimely expert witness designation if: “(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. [¶] (2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. [¶] (3) Promptly thereafter served a copy of the proposed expert witness information . . . on all other parties who have appeared in the action. [¶] (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.)

Discussion

The Court previously considered Plaintiff’s motion for leave to designate expert witnesses. In its order of November 4, 2019, the Court denied Plaintiff’s motion without prejudice, because Plaintiff failed to advance admissible evidence. Plaintiff now renews the motion, predicated on several declarations.

First, Plaintiff relies on her own declaration. Plaintiff states that she terminated her former counsel in May 2019. (Declaration of Joanna Aguilar, ¶ 3.) Plaintiff also states that she was unable to retain counsel until September 13, 2019, and that she was unaware that her former counsel had failed to designate expert witnesses. (Ibid.) Plaintiff also represents that she had been representing herself during the interim without a full copy of the case file, and she was unaware that her former counsel had failed to designate expert witnesses. (Id., ¶¶ 4-5.)

Second, Plaintiff relies on a declaration from her former counsel, Igor Fradkin. Fradkin states that his office erroneously removed Plaintiff’s case from its active case list and therefore failed to designate expert witnesses on behalf of Plaintiff. (Declaration of Igor Fradkin, ¶¶ 4-6.)

Finally, Plaintiff relies on declarations from physicians. Plaintiff proffers a declaration from H. Ronald Fisk, M.D., a neurologist who has examined Plaintiff. Fisk states that Plaintiff’s brain does not function at the level of a normal, healthy brain due to her traumatic brain injury. (Declaration of H. Ronald Fisk, M.D., ¶ 10.) Additionally, Plaintiff proffers a declaration from Jeffrey Schaeffer, Ph.D. (“Schaeffer”), a neuropsychologist who has examined Plaintiff. Schaeffer states that Plaintiff has a neurocognitive disorder from her traumatic brain injury, which impairs her attention, memory, language fluency, and executive functioning. (Declaration of Jeffrey Schaeffer, Ph.D., ¶ 8.)

Based upon all of this evidence, the Court concludes that Plaintiff’s neglect in failing to timely designate expert witnesses was excusable. The Court disagrees with Defendant’s argument that Plaintiff did not proceed with sufficient diligence after retaining current counsel. As Defendant acknowledges, three weeks elapsed between the time Plaintiff retained current counsel and the time Plaintiff belatedly disclosed her expert witness list. This time period is sufficiently brief and does not evidence neglect or dilatory behavior.

Defendant argues that Plaintiff did not act with diligence when she was unrepresented. However, Plaintiff has demonstrated that she did not have her entire case file and suffered a traumatic brain injury which impacted her ability to handle this case. Defendant argues that prior counsel were not diligent. That is not dispositive, as their handling of this matter is the basis for the motion.

Defendant argues that expert testimony is not necessary in this case. The Court disagrees. Plaintiff claims that she sustained a traumatic brain injury as a result of the underlying collision. Traumatic brain injuries are “sufficiently beyond common experience” such that expert testimony is warranted. (Evid. Code, § 801, subd. (a).)

Defendant argues that a trial continuance will be necessary, which Plaintiff concedes. The Court concludes that Plaintiff’s right to a trial on the merits outweighs any prejudice to Defendant from a continuance of trial. Likewise, Defendant’s argument that Defendant will suffer prejudice from Plaintiff’s designation of experts unpersuasive. That Defendant will expend additional effort to litigate this case is not a basis to deny Plaintiff the ability to designate experts. (See Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 135-136, disapproved of other grounds in Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31.)

Defendant argues that the Court cannot grant the motion, because Plaintiff has not served a proper expert witness designation. (See Code Civ. Proc., § 2034.720, subd. (c)(3).) As Defendant points out, the expert witness designation Plaintiff served includes a declaration from Plaintiff’s counsel, in which Plaintiff’s counsel states many facts on information and belief. (See Declaration of David S. Bederman, Esq., Exhibit A.) Such testimony is inadmissible as without foundation. (Evid. Code, § 702, subd. (a).) Therefore, the Court grants the motion and orders Plaintiff to provide proper declarations within twenty (20) days. If Plaintiff fails to do so, Defendant may file a motion to strike the expert witnesses.

Finally, Defendant argues that Plaintiff failed to meet and confer in an adequate manner. However, the Court notes that Defendant has vigorously opposed all of Plaintiff’s efforts to obtain leave to designate expert witnesses. In light of Defendant’s consistent and firm stance against Plaintiff’s request to belatedly designate expert witnesses, the Court determines that further efforts to meet and confer were futile and unnecessary. (See Civ. Code, § 3532.)

Conclusion and Order

The Court grants Plaintiff’s motion to reopen expert discovery and permit Plaintiff to designate late expert witnesses. Plaintiff shall produce declarations in compliance with Code of Civil Procedure section 2034.260(c) within twenty (20) days unless Defendant stipulates to a later deadline. The Court advances and vacates the current final status conference and trial dates. The Court sets the following dates:

Final Status Conference: May 27, 2020, at 10:00 a.m.

Trial: June 11, 2020, at 8:30 a.m.

The discovery and motions cut-off shall be based on the new trial date. The Court is not inclined to continue the trial date so the parties shall complete all discovery by the cut-off. Plaintiff shall provide notice and file proof of such with the Court.

DATED: December 13, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC623129    Hearing Date: November 04, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

NOTICE

Judge Goorvitch was sworn-in as a Superior Court Judge on December 15, 2015.  Prior to that time, Judge Goorvitch made the following campaign contributions to Michael N. Feuer: (1) $100 to Mr. Feuer’s 2008 campaign for the 42nd Assembly District on or about November 9, 2007; (2) $100 to Mr. Feuer’s 2010 campaign for the 42nd Assembly District on or about October 19, 2010; and (3) $100 to Mr. Feuer’s 2013 campaign for Los Angeles City Attorney on or about May 30, 2012.  Judge Goorvitch has no personal relationship with Mr. Feuer and has had no communications with Mr. Feuer since he became the City Attorney.  The Court can be fair and impartial in this matter. 

Background

Plaintiff Joanna Aguilar (“Plaintiff”) filed this action against Defendant City of Los Angeles (“Defendant”) based on injuries Plaintiff sustained in a motor vehicle collision with a police vehicle. Defendant served his request to exchange expert witness information on July 13, 2018. Plaintiff did not designate any expert witnesses in response. Plaintiff moves for leave to designate expert witnesses, which Defendant opposes. The motion is denied without prejudice.

LEGAL STANDARD

Per Code of Civil Procedure section 2034.710 provides, “On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” (Code Civ. Proc., § 2034.710, subd. (a).) The party seeking leave to serve an untimely expert witness designation must do so prior to the cut-off date for expert witness depositions unless the Court concludes that “exceptional circumstances” exist. (Code Civ. Proc., § 2034.710, subd. (b).) The Court must grant leave to submit an untimely expert witness designation if:

(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. [¶] (2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect. [¶] (3) Promptly thereafter served a copy of the proposed expert witness information . . . on all other parties who have appeared in the action. [¶] (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.)

Discussion

In this case, Plaintiff claims that she failed to designate expert witnesses because she was self-represented and suffering from a traumatic brain injury at the time Defendant demanded her expert witness designation. While this is a potential basis for relief, Plaintiff has not advanced any admissible evidence in support of the motion. Plaintiff relies entirely on a declaration of her counsel, David S. Bederman (“Bederman”). As Defendant points out, Bederman lacks personal knowledge of why Plaintiff failed to designate expert witnesses while she was self-represented. Therefore, Bederman’s testimony lacks proper foundation and is inadmissible. (Evid. Code, § 702.) Further, while Bederman purports to authenticate two medical reports about Plaintiff, Bederman simply states that he is in possession of the records. Bederman’s testimony is not sufficient to authenticate the medical records. (See Evid. Code, § 1400.) Additionally, if offered for the truth of the matters asserted therein, these reports are hearsay and therefore inadmissible in the absence of a declaration from a business records custodian. (Evid. Code, § 1200.) Defendant properly objects to Bederman’s declaration on these bases. Accordingly, the motion is denied without prejudice as without evidentiary foundation.

Conclusion and Order

Plaintiff’s motion for leave to untimely designate experts is denied without prejudice. Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 4, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court