Disposed - Judgment Entered
Personal Injury - Motor Vehicle
KRISTIN S. ESCALANTE
MARK A. BORENSTEIN
MILLER KEVIN PAYTON
GROSPE EMILY ALICIA
SMITH JOHN SHAFFER ESQ.
GIBBS PATRICK JOSEPH ESQ.
8/15/2019: Request for Dismissal
8/20/2019: Witness List
8/20/2019: Statement of the Case
8/20/2019: Statement of the Case
8/21/2019: Minute Order - MINUTE ORDER (FINAL STATUS CONFERENCE)
10/24/2019: Opposition - OPPOSITION TO PLAINTIFFS EX PARTE
10/25/2019: Opposition - OPPOSITION TO PLAINTIFF'S EX-PARTE APPLICATIONS TO (1) CONTINUE TRIAL AND (2) AUGMENT/AMEND PLAINTIFF'S EXPERT DESIGNATION
10/25/2019: Minute Order - MINUTE ORDER (1. HEARING ON EX PARTE APPLICATION FOR AN ORDER TO CONTINUE T...)
10/25/2019: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL AND ALL EXPERT WITNESS DISCOVERY DATES
10/25/2019: Ex Parte Application - EX PARTE APPLICATION FOR AN ORDER TO AMEND HIS EXPERT WITNESS DESIGNATION PURSUANT TO C.C.P. SECTION 2034
11/12/2019: Motion to Augment - MOTION TO AUGMENT NOTICE & MOTION TO AUGMENT PLAINTIFF'S 2034 DESIGNATION
11/12/2019: Motion to Augment - MOTION TO AUGMENT NOTICE AND MOTION TO AUGMENT EXPERT WITNESS DESIGNATION
11/22/2019: Opposition - OPPOSITION OPPOSITION TO PLAINTIFFS MOTION
11/25/2019: Minute Order - MINUTE ORDER (COURT ORDER)
11/25/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 11/25/2019
12/6/2019: Reply - REPLY PLAINTIFF'S REPLY TO DEFENDANTS' OPPOSITION TO MOTION TO AUGMENT EXPERT WITNESS DESIGNATION
12/11/2019: Minute Order - MINUTE ORDER (HEARING ON PLAINTIFF'S MOTION TO AUGMENT RECORD EXPERT WITNES...)
1/21/2020: Motion in Limine - MOTION IN LIMINE DEFENDANTS MOTION IN LIMINE NO 13
DocketRequest (PLAINTIFF?S REQUEST FOR RECONSIDERATION OF THE COURT?S ORDER RE: PAYMENT OF JURY FEES; AND REQUEST TO VACATE THE ORDER; DECLARATION OF J. SHAFFER SMITH IN SUPPORT THEREOF); Filed by Delvin Manuel (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 29, Kristin S. Escalante, Presiding; Order to Show Cause Re: Dismissal - Not Held - Advanced and Vacated[+] Read More [-] Read Less
Docketat 2:35 PM in Department I; Court Order[+] Read More [-] Read Less
DocketCertificate of Mailing for ((Court Order Re: Jury Fees) of 09/09/2020); Filed by Clerk[+] Read More [-] Read Less
DocketMinute Order ( (Court Order Re: Jury Fees)); Filed by Clerk[+] Read More [-] Read Less
DocketAmended Judgment on Special Verdict; Filed by Emily Alicia Grospe (Defendant); Joel Grospe (Defendant)[+] Read More [-] Read Less
DocketNotice (notice of entry of judgment or order); Filed by Emily Alicia Grospe (Defendant); Kevin Payton Miller (Defendant)[+] Read More [-] Read Less
DocketMemorandum of Costs (Summary); Filed by Emily Alicia Grospe (Defendant); Kevin Payton Miller (Defendant)[+] Read More [-] Read Less
Docketat 08:47 AM in Department I; Court Order[+] Read More [-] Read Less
DocketJudgment on Special Verdict; Filed by Delvin Manuel (Plaintiff)[+] Read More [-] Read Less
DocketPLAINTIFF'S MOTION IN LIMINE NO. 2 TO EXCLUDE EVII)ENCE, TESTIMONY, OR ARGUMENT REGARDING PAYMENTS FROM COLLATERAL SOURCES[+] Read More [-] Read Less
DocketDemand for Jury Trial; Filed by Defendant/Respondent[+] Read More [-] Read Less
DocketAnswer; Filed by Defendant/Respondent[+] Read More [-] Read Less
DocketMiscellaneous-Other; Filed by Defendant/Respondent[+] Read More [-] Read Less
DocketANSWER IO COMPLAINT[+] Read More [-] Read Less
DocketDEMAND FOR JURY TRIAL[+] Read More [-] Read Less
DocketCIVIL DEPOSIT[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketComplaint; Filed by Delvin Manuel (Plaintiff)[+] Read More [-] Read Less
DocketCOMPLAINT FOR PERSONAL INJURIES AND PROPERTY DAMAGE[+] Read More [-] Read Less
Case Number: ****5747 Hearing Date: December 11, 2019 Dept: 2
Manuel v. Grospe, et al.
Plaintiff’s Motion to Augment Expert Witness Designation is GRANTED.
1) The motion is not untimely made as Defendants contend. On 10/25/19, the court continued trial to 2/11/2020. While the court stated that discovery is not continued, the order does not expressly state that expert discovery was also not to be based on the new trial date. Instead the court permitted Plaintiff to move to amend his expert witness designation by noticed motion. See Order of 10/25/19.
Motions concerning expert discovery can be heard on or before the 10th day before the date set for trial. Cal Code Civ Proc ; 2024.030.
2) Plaintiff can move to augment his expert witness list by adding the name and address of any expert witness subsequently retained or amend the expert witness declaration with respect to that expert’s general substance of testimony. Code Civ. Proc., ; 2034.610
Defendants argue that ; 2034.610 applies to permit amendment or augmentation of retained experts only. Here, Plaintiff’s expert designation identified Ramin Rabbani, M.D. as a non-retained expert and seeks to replace Dr. Rabbani, because of his unavailability. Decl of J. Shaffer Smith, ¶¶ 5-6. Defendants read the statute too narrowly.
The parties are obligated to identify experts whose opinion a party expects to offer at trial. Cal Code Civil Procedure ; 2034.26(b)(1). In the case of retained experts under Cal Code Civil Procedure ; 2034.210(b), the party is required to provide an expert witness declaration containing certain information. Cal Code Civil Procedure ; 2034.210(c).
Plaintiff’s failure to list an expert under Section 2034.260 subjects that expert’s testimony to exclusion from evidence. Cal Code Civil Procedure ; 2034.300.
Therefore, without seeking leave to amend or augment his witness list under ;2034.610, Plaintiff would be precluded from offering the new expert’s testimony whether retained or not retained.
3) To grant Plaintiff’s requested relief, the court must find that Plaintiff would not in the exercise of reasonable diligence have determined to call that expert, or the failure to call that expert was due to mistake, inadvertence, surprise, or excusable neglect. Cal Code Civil Procedure ; 2034.620(c).
The court has discretion to grant leave to augment or amend an expert witness list after considering the extent to which the opposing party has relied on the list and whether the opposing party will suffer prejudice: Cal Code Civil Procedure ; 2034.610.
Plaintiff has shown that he could not have determined to call Dr. Sanjiv Kumar Jain, M.D. at the time of the original designation as Plaintiff was not then treating with Dr. Jain. Declaration of J. Shaffer Smith, ¶ 6. Defendant had treated with Dr. Rabbani who was designated. Dr. Rabbani is now on leave, which Plaintiff could not have anticipated, and has failed to appear at depositions in the case. Id. ¶ 6.
Since Plaintiff is continuing to be treated for his injuries by a new physician, and because Dr. Rabbani is no longer available, it is reasonable to permit Plaintiff to designate Dr. Jain. That Dr. Jain’s field differs from Dr. Rabbani’s is not sufficient grounds to deny the motion. Plaintiff is presently seeking treatment from him for his injuries. Plaintiff could not anticipate that his formerly treating physician would not be available to attest to his injuries. Plaintiff would suffer prejudice without such testimony.
Defendant has not established any resulting prejudice. Defendant has not established that six months of trial preparation has been rendered “largely useless.” On 10/25/19, the court continued trial to 2/20/20. Defendant has sufficient time to take Dr. Jain’s deposition in advance of trial.
Moving party is ordered to give notice.
Case Number: ****5747 Hearing Date: December 06, 2019 Dept: 2
****5747 Manuel v. Grospe, et al
On the court’s own motion, the hearing on the Motion to Augment Expert Witness Designation set for 12/6/19 is continued to 12/11/19 at 1:30 p.m. in Department SS-2. The due dates for the opposition and reply are based on the original hearing date.
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