On 02/27/2018 a Personal Injury - Motor Vehicle case was filed by ELIZABETH GOSALVEZ against SANDRA W KILEY in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
KILEY SANDRA W.
DOES 1 TO 10
KILEY ALISON G.
KILEY BRIAN J.
2/27/2018: CIVIL DEPOSIT
2/27/2018: COMPLAINT UNLIMITED JURISDICTION - AMOUNT DEMANDED EXCEEDS $25,000.00
Answer; Filed by Sandra W. Kiley (Defendant); Alison G. Kiley (Defendant); Brian J. Kiley (Defendant)Read MoreRead Less
CIVIL DEPOSITRead MoreRead Less
Complaint; Filed by Elizabeth Gosalvez (Plaintiff)Read MoreRead Less
COMPLAINT UNLIMITED JURISDICTION - AMOUNT DEMANDED EXCEEDS $25,000.00Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC695718 Hearing Date: December 02, 2019 Dept: 3
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
SANDRA W. KILEY, ET AL.,
CASE NO: BC695718
[TENTATIVE] ORDER GRANTING MOTION FOR RELIEF
December 2, 2019
1. Background Facts
Plaintiff, Elizabeth Gosalvez filed this action against Defendants, Sandra, Alison, and Brian Kiley for damages arising out of an automobile accident. Plaintiff filed the action on 2/27/18, but did not serve the summons and complaint for quite some time (there is no proof of service in the court file). Defendants appeared on 10/19/18. On 8/08/19, the Court granted an ex parte application to continue the trial date, continuing trial to 12/02/19.
2. Expert Exchange
In September of 2019, Defendant made a demand for expert exchange, setting the exchange date for 10/11/19. After Defendant made the demand, Defense Counsel hired a new secretary. The new secretary mis-calendared the trial date, and the office’s calendaring system erroneously calendared all statutory cut-off dates to correspond to the incorrect (and much later) trial date. In October, Defense Counsel received Plaintiff’s expert designation, and assumed Plaintiff had chosen to designate early. Counsel checked his online scheduling system, and confirmed the trial date was not until February. On 11/01/19, Plaintiff mentioned the upcoming trial date. Defense Counsel then looked on the court’s online system and saw his trial date was erroneous.
3. 11/08/19 Ex Parte Application
On 11/08/19, Defendant made an ex parte application to continue the trial date. The Court has reviewed the ex parte application, because Plaintiff argues Defendant is being disingenuous and contradictory in connection with this motion in comparison to the 11/08/19 application. The application was made on the grounds that (a) Defendants had not been able to complete Plaintiff’s deposition and/or IME, (b) Defendant Kiley is attending college out of state and cannot appear on the scheduled trial date, and (c) Defendant’s lead attorney is engaged in trial on 12/02/19, the date set for trial. The Court continued the trial date to 12/30/19 because Kiley would be on winter break at that time. The Court declined to extend the discovery cut-off date, finding Defendant failed to show diligence in conducting discovery.
4. 11/15/19 Ex Parte Application
On 11/15/19, one week later, Defendant brought two ex parte applications. Defendant sought an order re-opening discovery to permit Defendant to conduct Plaintiff’s deposition; the Court denied the motion. Defendant also sought an order permitting it to serve a tardy expert designation. The Court granted an order shortening time for hearing on the motion to serve a tardy expert designation. The Court has, at this time, received the motion, opposition, reply, and all supporting papers.
a. Opposition Defects
CRC 3.1113(d) limits opposition briefs to fifteen pages. CRC 2.108 requires each line of type to line up with the lines on the left side of the page. Plaintiff filed a 23-page brief in opposition to the motion. Plaintiff’s paper has 28 lines per page, but Plaintiff squeezed in 31 lines of type on each page. The opposition grossly violates the Rules of Court. The Court has briefly considered the opposition, but found it difficult to read and consider fully, especially on shortened time, in light of these violations.
b. Law Governing Late Designations
A party who failed to exchange under CCP § 2034.260 on time (normally 50 days before trial) may seek leave to submit the required material on a later date. (CCP § 2034.710.)
Absent “exceptional circumstances,” the motion for permission to file a tardy list must be made early enough to permit deposing the experts involved before the 15–day cut-off on expert witness depositions. (CCP §§ 2034.710(b), 2024.030.)
The court may permit tardy submission of expert witness lists and information if the following matters are shown (CCP § 2034.720):
(a) Excuse: The failure to exchange expert witness information on time resulted from “mistake, inadvertence, surprise or excusable neglect.” (CCP §2034.720(c)(1).)
(b) Relief sought promptly: The motion for relief is being made promptly after learning of such excuse;
(c) Information belatedly served on all other parties: The moving party has already served a copy of the proposed expert witness list and declarations on all other parties to the action;
(d) Availability for deposition: The moving party will make the witness available immediately for a deposition if leave is granted;
(e) No prejudice to opposing party: The court must “take into account” the extent to which the opposing party has relied on the absence of an expert witness list from the moving party. Before granting leave to submit the tardy list, the court must determine that it will not prejudice the opposing party's ability to maintain its action or defense on the merits; and
(f) Attempt to resolve informally: The usual declarations are required stating a “reasonable and good faith attempt” to resolve informally each issue presented by the motion. (CCP § 2034.710(c).)
In ruling on the motion, the court must consider all of the § 2034.720 factors enumerated above. (Plunkett v. Spaulding, supra, 52 Cal.App.4th at pp. 135–136—denial based solely on timing of motion was abuse of discretion.) If relief is granted, it must be conditioned on the moving party making the expert available for deposition “immediately.” (CCP § 2034.720(d).)
There are four issues presented by way of the motion. First, is Plaintiff precluded from complaining about Defendants’ failure to timely designate due to Plaintiff’s own insufficient expert designation? Second, is this an improper motion for reconsideration? Third, did Defendants show excusable neglect? Fourth, did Defendants need to show diligence and, if so, did Defendants do so? Fifth, will Plaintiff be prejudiced if the motion is granted?
i. Plaintiff’s Designation
Defendants argue Plaintiff cannot complain about Defendants’ failure to timely designate expert witnesses because Plaintiff’s own expert designation was deficient. Defendants rely on Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1446 in support of their position. The trial court therein granted a motion to exclude the plaintiff’s witness from testifying at trial. The court of appeals reversed. Its primary holding was that the defendant had not fully complied with the rules governing expert designation, and therefore had no standing to challenge the plaintiff’s designation. The court of appeals went on, however, to find the ruling would have been erroneous in any event, because the defendant failed to show the plaintiff acted “unreasonably” in connection with the designation. The court noted a lack of statutory or other authority defining unreasonable, but indicated the term tends to mean something akin to gamesmanship.
Notably, Staub was decided in connection with a motion to exclude, not a motion for leave to make a late designation. However, the motion to exclude was made on the ground that the plaintiff had failed to make a timely designation (the plaintiff’s designation was due on 12/27/11, but was made on 1/09/12). Thus, the analysis appears to be applicable to this case.
Defendants argue Plaintiff’s expert designation was deficient because Plaintiff failed to include any report or writings with her expert designation for her intended life care plan expert. Plaintiff, in opposition to the motion, indicates (a) the life care expert did not prepare any report, and (b) the life care expert has been withdrawn. The Court finds this explanation sufficient. Notably, Defendant is seeking to designate an orthopedist and a neurologist, not a life care expert; Defendant does not complain about Plaintiff’s designation of these experts.
ii. Improper Motion for Reconsideration
Plaintiff argues at length that this is an improper motion or reconsideration of the Court’s 11/08/19 denial of Defendants’ ex parte application to continue trial and re-open discovery. The Court disagrees. The Court detailed, above, the nature and basis for Defendants’ 11/08/19 application. The application did not mention expert designations, so the Court necessarily did not consider expert designations. While Defendants arguably SHOULD have raised this issue at the time, as it was ripe for consideration, they did not do so. The Court cannot be improperly reconsidering anything it did not consider in the first instance.
iii. Excusable Neglect
The Court has one major concern with Defendant’s showing of excusable neglect. Defense Counsel declares he signed the expert designation demand, but did not pay a lot of attention because this is a quick document that does not require much analysis. Defense Counsel then declares a new secretary came in and entered the trial date incorrectly, which triggered the calendar to set all statutory dates based on the erroneous trial date. The Court’s concern is this: wasn’t the demand for expert designation, which was served by Defendant, separately calendared? Trial dates are continued often, but once a demand for designation is made, the date stands firm. It seems that a calendar system would have this date entered separately and the date would not be “triggered” in any way, because the date is not a statutory cut-off but instead a demand-based cut-off.
Defendants do not cite on point authority concerning what is and is not excusable neglect. Defendants rely on Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343 to support their position. The Court has reviewed Mink, and finds it is entirely off-base to the issues presented here.
Regardless of the foregoing, the Court is inclined to find the neglect at issue excusable. In Elston v. City of Turlock (1995) 38 Cal.3d 227, 234, the court found an attorney’s neglect to be excusable. Despite reasonable supervision, the attorney's secretary misfiled papers or failed to enter an appearance date in the office calendar. The Court held, “Where an attorney states that he was unaware of his duty to appear or answer because his employees misplaced papers or misinformed him as to the relevant date, relief is routinely granted.”
The Court finds this is substantially similar to the situation in this case, and therefore finds excusable neglect.
iv. Is There a Diligence Requirement, and was it Satisfied?
The parties disagree concerning whether there is a diligence requirement in connection with designation of witnesses. Per §2034.720(c)(2), the motion must be made “promptly” upon discovery of the mistake. Thus, there is no diligence requirement in connection with the designation itself (this is subsumed into the excusable neglect requirement), but only in connection with the request for relief upon determining the mistake.
Defense Counsel’s declaration, at ¶¶9-12, is sufficient to show diligence in connection with the request for relief.
The Court finds that where, as here, the meet and confer efforts began very quickly after the designation itself occurred, there is no prejudice to Plaintiff as a result of the granting of the motion. Defendants have secured the necessary experts, provided all necessary information, and agreed to make the experts immediately available for deposition.
The motion meets all of the requirements of §2034.720, which indicates the Court “shall” grant the motion if all requirements are met. The motion is therefore granted.
Defendants are ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at email@example.com indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.