NORAH DEBELLIS ET AL VS CITY OF TORRANCE ET AL

Tentative Rulings

Case Number: ****6268 Hearing Date: March 11, 2022 Dept: M

Hearing Date: March 11, 2022

Moving Parties: Plaintiffs Norah Debellis and Eric Debellis

Responding Party: Defendant La Terrazza HOA

Motion to Augment Their Expert Witness Designation

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED.

BACKGROUND

On January 9, 2017, plaintiffs Norah Debellis and Eric Debellis filed a complaint against defendants City of Torrance and La Terrazza Homeowners Association (“La Terrazza”) for premises liability, dangerous condition of public property, and loss of consortium based on a trip and fall on a sidewalk on October 29, 2015.

On April 20, 2017, La Terrazza filed a cross-complaint against City of Torrance for contribution and indemnity.

On May 5, 2017, City of Torrance filed a cross-complaint against La Terrazza.

On May 14, 2018, La Terrazza filed an amended cross-complaint.

On July 30, 2018, City of Torrance filed an amended cross-complaint.

On March 3, 2020, the court granted defendant La Terrazza’s motion to reopen discovery for the limited purpose of having plaintiff submit to an IME as to her vision problems.

Trial is set for April 12, 2022.

LEGAL AUTHORITY

CCP 2034.610 states: “(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.

(2) 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.

(b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010 ) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

Under CCP 2034.620, “[t]he court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the 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 either of the following:

(1) 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 expert witness.

(2) 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:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

(B) 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.

(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.4 10), 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.”

DISCUSSION

Plaintiffs request leave to augment their expert witness designation to include two new retained experts (Penelope Suter, O.D. and Doreen Casuto, R.N.) and one non-retained expert (Albert Chun, D.O.). Plaintiffs argue that good cause exists because the last exchange of expert witness information took place on February 4, 2020, before trial was continued for over two years due to COVID-19. Further, plaintiffs assert, since that time, plaintiff Norah’s injuries and symptoms have persisted and, in some instances, worsened, requiring plaintiff to subsequently retain an expert neuro-optometrist (Dr. Suter) to address her worsening vision problems and prompting plaintiff to seek further medical treatment from a new health care provider (optometrist Dr. Chun). Also, plaintiffs’ expert life care planner (Anne Barnes, R.N.) may be unavailable for trial due to health issues, and the parties have agreed to permit plaintiffs to replace her with a new life care planner (Casuto) to avoid any complications at trial. Plaintiffs contend that when plaintiffs sent out a new Demand for Exchange of Expert Witnesses on November 12, 2021 to include these new retained and non-retained experts, defendant La Terrazza HOA objected although City of Torrance did not. Plaintiffs and the City of Torrance served new Expert Witness Designations on December 7, 2021.

Plaintiffs note that they disclosed the two retained experts to defendants in May 2021. Additionally, plaintiffs’ counsel sent defense counsel Casuto’s draft life care plan on October 4, 2021, shortly before the mediation. Plaintiffs contend that defendants have been offered the opportunity to depose Dr. Suter on multiple occasions. Plaintiffs argue that they will be prejudiced if the court does not exercise its discretion to allow plaintiffs to augment their designations. Plaintiffs assert that defendants will not be prejudiced by the addition of the witnesses because they will have ample opportunity to take each of their depositions before trial; effectively no expert discovery has been completed to date; and defendants are already in possession of Dr. Suter’s report and Casuto’s draft life care plan; and plaintiffs agree to permit La Terrazza HOA to augment its expert witness list to include a neuro-optometrist.

In opposition, defendant La Terrazza HOA argues that plaintiffs have not met their burden of showing either surprise or reasonable diligence and that plaintiffs offer no explanation why they could not have retained an eye/brain doctor expert when they had time to supplement following defendant’s expert disclosure. Further, defendant argues that plaintiffs did not move promptly to augment after plaintiff first met with Dr. Suter in September 2020 and Dr. Chun in October 2020. Defendant does stipulate to the replacement of the life care planner.

Defendant further contends that it has relied on plaintiffs’ disclosure for over two years but that if the court grants the motion, defendant requests that its expert Alfredo Sadun, M.D. be allowed to conduct a brief updated examination of plaintiff Norah not to exceed one hour and a continued supplemental deposition of Norah not to exceed one hour of actual testimony time.

In reply, plaintiffs argue that reopening discovery to allow defendant to conduct a second deposition of plaintiff and a third medical exam, when such discovery is not reasonably related to the augmentation of plaintiffs’ expert witness list is not warranted.

The court finds that plaintiffs have met the requirements under CCP 2034.610. Plaintiffs engaged in a timely exchange of expert witnesses. The motion is made at a sufficient time in advance of the time limit for the completion of expert witness discovery. Plaintiffs have sufficiently met and conferred.

The court also finds that the conditions under CCP 2034.620 have been satisfied. The court has taken into account the extent to which defendant relied on plaintiffs’ list of expert witnesses. The court also determines that there is sufficient time to take the deposition of Dr. Suter. Defendant will not be prejudiced in maintaining its defense. Plaintiffs disclosed Dr. Suter to defense counsel in May 2021 and offered Dr. Suter for deposition before the mediation. The court further finds that plaintiffs would not in the exercise of reasonable diligence have determined to call Dr. Suter as an expert witness or include her in their expert witness designation because plaintiff Norah had not yet treated with her when the last expert witness lists were exchanged. As she explains, as her condition worsened, she sought additional eye care from a separate specialist, a neuro-optometrist and that Dr. Suter recommended that plaintiff receive follow up treatment with optometrist Dr. Albert Chun. Further, as explained by plaintiffs, they promptly served a copy of the proposed expert witness information upon learning that defendant had purportedly changed its position regarding an additional expert witness designation in this case that the parties would disclose new expert witness designations in December 2021.

Thus, the motion is GRANTED and the court orders that (1) plaintiffs have leave to augment their expert witness list by adding retained experts Penelope Suter, O.D. and Doreen Casuto, R.N. and non-retained expert Albert Chun, D.O. Casuto will replace Anne Barnes, R.N.; and (2) leave to augment is conditioned on (a) plaintiff Norah submitting to an additional medical examination of not more than 30 minutes prior to the taking of the depositions of experts and (b) plaintiffs making their experts available for deposition pursuant to CCP 2034.620(d).

Plaintiffs are ordered to give notice of ruling.

Case Number: ****6268    Hearing Date: March 03, 2020    Dept: SWB

Hearing Date: March 3, 2020

Moving Parties: Defendant La Terrazza HOA

Responding Party: Plaintiff Norah Debellis

Motion for Order Reopening Limited Discovery

The court considered the moving, opposition, and reply papers.

RULING

The motion to reopen discovery is GRANTED for the limited purpose of having plaintiff submit to an IME as to her vision problems. Parties to meet and confer re specification of the person who would perform the examination, the manner, diagnostic tests and procedures, conditions, scope, and nature of the examination, as is required under CCP ;2032.320.

BACKGROUND

On January 9, 2017, plaintiffs Norah Debellis and Eric Debellis filed a complaint against defendants City of Torrance and La Terrazza Homeowners Association (“La Terrazza”) for premises liability, dangerous condition of public property, and loss of consortium based on a trip and fall on a sidewalk on October 29, 2015.

On April 20, 2017, La Terrazza filed a cross-complaint against City of Torrance for contribution and indemnity.

On May 5, 2017, City of Torrance filed a cross-complaint against La Terrazza.

On May 14, 2018, La Terrazza filed an amended cross-complaint.

On July 30, 2018, City of Torrance filed an amended cross-complaint.

Trial is set for March 25, 2020.

LEGAL AUTHORITY

CCP ;2024.050 states: “(a) On motion of any party, the court may grant leave to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery. (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

DISCUSSION

Defendant requests an order reopening discovery to allow defendant to seek an order permitting an additional IME of plaintiff for the purpose of evaluating her vision complaints. Discovery closed on July 3, 2019. Defendant requests that the IME be ordered for March 6, 2020 at Doheny Eye Institute.

As to ; 2024.050(b)(1), the necessity and reasons for the discovery, defendant contends that on January 17, 2020, at the mediation, defendant discovered that plaintiff recently had undergone testing and treatment by a neuro-ophthalmologist for an eye condition that plaintiff is claiming was caused by the trip and fall incident. Defendant asserts that plaintiff’s claim is a significant change in the posture of the case.

As to (2), defendant contends that it was diligent in seeking discovery from plaintiff, but that plaintiff had not seen the neuro-ophthalmologist until after discovery had closed, first on July 10, 2019 and again on September 20, 2019, and that plaintiff did not disclose the new treatment until January 17, 2020. Defendant explains that at her deposition in August 2017, plaintiff testified that she was experiencing “vision problems” but that her “eye health is fine” and that her eyes are healthy and that the records reflected plaintiff’s complaints as being related to her need for glasses/adjustment to the glasses.

In opposition, plaintiff argues that defendant has not been diligent in bringing this motion and that good cause does not exist to order a third defense medical examination because defendant has known since August 24, 2017, from the time of plaintiff’s deposition that plaintiff was having serious problems with her vision as a result of the accident. Further, defense counsel has had plaintiff’s medical records since December 2018 from plaintiff’s eye doctor indicating that plaintiff was suffering from blurry vision as a result of the accident. Plaintiff asserts that she provided a significant amount of testimony regarding the problems she was having with her vision as a result of the accident. Moreover, she contends, her supplemental responses served on September 13, 2019 identified vision problems that she attributes to the incident and that her vision problems were getting worse.

As to (3), defendant argues that reopening discovery for the limited purpose will not prejudice any party. In opposition, plaintiff argues that she will be prejudiced because she will be forced to take time out from work with little or no notice to her employer. Further, any report from a late IME will make analysis by plaintiff’s experts extremely difficult if not impossible and much more expensive.

As to (4), the length of time that has elapsed between the original trial date and the current trial date, plaintiff points out that on July 3, 2019, the court continued trial to March 2020 by stipulation and that discovery would not be reopened.

The court finds that since August 2017, defendant was aware that plaintiff was claiming vision problems as a result of the incident. However, it appears that plaintiff’s vision problems have worsened and have become more severe. Further, after the discovery cut-off, plaintiff served supplemental responses with additional detail as to her vision problems and she treated with Dr. Ron Gallemore on July 10, 2019 and September 20, 2019.

Thus, the court finds good cause for reopening discovery for the limited purpose of having plaintiff submit to an IME as to her vision problems. The court, however, is unable to order plaintiff to submit to an IME in this order because defendant has not specified the person who would perform the examination, the manner, diagnostic tests and procedures, conditions, scope, and nature of the examination, as is required under CCP ;2032.320.

The motion to reopen discovery is GRANTED.

Defendant is ordered to give notice of the ruling.