Tentative Rulings

Case Number: BC634189    Hearing Date: November 15, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Background

Plaintiff Kathy Pauline Morris (“Plaintiff”) moves to augment her expert witness designation. Defendants Hakob Babajanyan and TLA Limousine, Inc. (“Defendants”) oppose the motion. The motion is granted.

Legal Standard

Per Code of Civil Procedure section 2034.610, subdivision (a), “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: [¶] (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.” (Code Civ. Proc., § 2034.610, subd. (a)(1).)

In ruling on a motion to augment an expert witness designation, the court must take into account “the extent to which the opposing party has relied on the list of expert witnesses . . . ,” and must determine that the opposing party “will not be prejudiced in maintaining that party’s action or defense on the merits.” (Code Civ. Proc., § 2034.620, subd. (a)-(b).) Additionally, the court must determine that “[t]he 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 . . . ,” or that “[t]he 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.” (Code Civ. Proc., § 2034.620, subd. (c).) Finally, the moving party must “mak[e] the expert available immediately for a deposition.” (Code Civ. Proc., § 2034.620, subd. (d).) The court may also condition leave to amend on any other term the court deems just. (Ibid.)

DISCUSSION

Plaintiff relies on the declaration of her counsel, Stacey R. Cutting (“Counsel”). Counsel states that she interpreted the continuance of the original trial date to also encompass a continuance of the date for the exchange of expert witness information, and thereby failed to disclose two retained experts: Timothy Lanning, and Aaron M. Wolfson, Ph.D. (See Declaration of Stacey R. Cutting, Esq.) The initial trial date governs the deadline for the demand for an exchange of expert witness information. (See Code Civ. Proc., § 2034.220.) Likewise, the date for exchange of expert witness information is “50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date . . . .” (Code Civ. Proc., § 2034.230, subd. (b).) While the Court continued the trial of this matter and all discovery and motion cut-off dates, as the parties had already exchanged expert witness information, the continuance did not trigger another opportunity to demand the exchange of expert witness information. Therefore, Counsel’s belief that the continuance of the trial date would continue the date for the exchange of expert witness information was therefore incorrect.

Nevertheless, The Court finds that Plaintiff’s failure to designate these two experts was the result of her mistake, and grants the motion on this basis. Defendants argue they will suffer prejudice if the Court grants the motion because they “were unable to direct lines of questioning to Plaintiff, [Plaintiff’s treating psychologist], and other lay witnesses regarding Dr. Wolfson and Mr. Lanning . . . .” (Declaration of Donavon Sawyer, ¶ 30.) The experts Plaintiff now seeks to designate are retained experts, not treating medical providers. Therefore, Defendants would have no basis to depose Plaintiff or other witnesses regarding the opinions of these experts. Defendants are “not ‘prejudiced’ simply because the new expert[s] will give testimony adverse to [them].” (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1479.) As trial in this matter is not until March 3, 2020 and expert discovery remains open, Defendants will have ample opportunity to prepare for trial.

Defendants also argue that granting the motion “will alter Defendants’ evaluation of this case and prejudicially undermine and negate the substance of Defendants’ August 22, 2019 998 Offer to Compromise . . . .” (Declaration of Donavon Sawyer, ¶ 30.) Defendants’ raise a valid concern. Accordingly, the Court conditions leave to amend on Plaintiff’s stipulation to rescind their previous offer to compromise and to afford Defendants an opportunity to make a new 998 offer to compromise, in order to eliminate potential prejudice to Defendants.

Conclusion and Order

Plaintiff’s motion to augment her expert witness list is granted on the condition that Plaintiff stipulates Defendants may rescind their 998 offer of August 22, 2019, and may make a new 998 offer to compromise. Plaintiff shall provide notice and file proof of such with the Court.

DATED: November 15, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court