Case Number: BC628642 Hearing Date: June 13, 2018 Dept: 3

JUAN CARLOS HERNANDEZ,

Plaintiff(s),

vs.

JACQUELINE BELITLLTI, ET AL.,

Defendant(s).

CASE NO: BC628642

[TENTATIVE] ORDER GRANTING PLAINTIFF’S MOTION FOR AN ORDER GRANTING LEAVE TO PROVIDE TARDY EXPERT WITNESS DISCLOSURES; IMPOSING SANCTIONS

Dept. 3

1:30 p.m.

June 13, 2018

1. Background Concerning Expert Exchange

The parties’ expert witness exchange was scheduled to take place on 5/14/18. Defendants provided their expert information, but Plaintiff failed to do so. At this time, Plaintiff moves for leave to submit tardy expert designations, contending his failure to submit a timely designation was the result of his attorney’s mistake and/or excusable neglect.

Plaintiff’s motion was set on shortened time at a 6/01/18 ex parte hearing.

Trial is currently scheduled for 6/27/18.

2. Law Governing Tardy Expert Designation

If a party fails to timely designate its expert(s), and wishes to do so on a later date, that party must make a motion for leave to designate an expert. Such motion is governed by CCP §2034.720, which provides:

The court shall grant leave to submit tardy expert witness information 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 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 described in Section 2034.260 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 under Article 3 (commencing with Section 2034.410), 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.

3. Initial Note

The Court notes that Plaintiff’s attorney has shown a pattern of lack of diligence in this case. Plaintiff’s attorney failed to appear at a 5/30/17 informal discovery conference, and failed to timely oppose a motion to compel further responses, instead submitting amended responses at the penultimate moment prior to the hearing. Sanctions were imposed.

Defendants also had multiple motions to compel on calendar for 6/06/18. Plaintiff’s attorney submitted opposition to the motions on 6/05/18, the day before the hearing. The oppositions merely indicated that responses were served the same day, and asked that the motions be taken off calendar as moot. Sanctions were again imposed.

4. Motion for Leave

At this time, Plaintiff moves for leave to submit a tardy expert designation. Plaintiff’s attorney declares the failure to submit a timely designation was because his office agreed, on 5/04/18, to continue the trial and related dates in a case involving a plaintiff by the name of Juan Carlos Reyes; Counsel mistakenly cleared the trial date and all related dates in this case, involving Juan Carlos Hernandez, instead of the case in which the agreement was reached.

Defendants argue the motion should be denied because (a) the mistake at issue was not inadvertent or excusable; (b) Plaintiff did not act promptly, (c) Plaintiff should have reviewed the file and discovered the mistake upon receipt of Defendants’ motions to compel on 5/11/18; and (d) Plaintiff has not offered to make the experts immediately available for deposition and/or to pay for depositions.

a. Excusable Neglect

Defendants’ first and third arguments are that any neglect on the part of Plaintiff’s attorney was not excusable. Defendants argue Plaintiff’s attorney did not act excusably because the last names of the clients were different, and also because Counsel should have reviewed the file on receipt of the 5/11/18 motions, which were served after the trial continuance in the other matter and before the expert exchange was due. While the Court absolutely agrees that Plaintiff’s attorney did not act with the utmost attention to detail, the Court cannot say, as a matter of law, that the mistake was not excusable.

b. Prompt

Defendants correctly note that the Code requires a party to act promptly upon learning of the party’s mistake. Defendants argue Plaintiff did not do so. Plaintiff’s attorney declares he received Defendants’ expert exchange on 5/14/18, but it was not until 5/18/18 that Plaintiff’s attorney’s paralegal realized Plaintiff failed to serve his own expert information; no details concerning why this was not discovered between Monday the 14th and Friday the 18th are provided. Plaintiff’s attorney does declare that his office “immediately” made contact with Defense Counsel’s office on 5/18/18, but Counsel was out of the office. An e-mail was sent on the morning of 5/18/18 to follow up. On Monday, 5/21/18, Plaintiff sent another e-mail. Defendants did not respond. Plaintiff called again on Friday, 5/25/18, but was again told Counsel was engaged in trial. Plaintiff e-mailed a tardy designation that day. On Wednesday, 5/30/18, Defendants objected to the designation as untimely and made without motion.

§2034.720(c)(2) obligates a party to timely “seek leave” to serve the tardy designation. Does this necessarily mean to seek leave through a motion, or is it permissible to seek leave through correspondence with the opposing party? Courts, of course, always prefer meet and confer prior to motion practice. That being said, waiting a week and a half without any response from the opposing party before actively seeking relief, with a trial date looming (6/27/18) was not wise.

The Court, above, noted Plaintiff’s pattern and practice of failing to timely respond to discovery obligations. This is a very close call. On balance, and in light of the fact that trial can be continued and there is no prejudice to Defendants, the Court is inclined to find Plaintiff acted sufficiently “promptly” to justify the relief sought.

c. Expert Depositions

Defendants also argue Plaintiff has not offered to make the experts immediately available for deposition, and has not offered to pay for their depositions. Exhibit C to the moving papers shows that, during the meet and confer process, Plaintiff offered to obtain dates for the depositions. The Code does not specifically require Plaintiff to provide dates for deposition prior to or at the time of making the motion; it only requires the party to “immediately” make the expert(s) available for deposition upon the granting of the motion. Per §2034.720(d), this order is conditioned on Plaintiff making his designated experts “immediately available” for deposition. The parties must meet and confer forthwith to choose deposition dates.

Defendants also argue Plaintiff failed to offer to pay for the expert depositions. Defendants fail to cite any authority to support the position that a party seeking leave to serve a tardy designation must offer to pay for the subject expert depositions. This order is not intended in any way to adjudicate which party must pay for the examinations; it is only intended to clarify that there is no requirement, in the Code, that the party moving for a tardy designation must agree to do so in connection with the moving papers.

d. Trial Continuance

Defendants argue that, if the motion is granted, the trial date should be continued until January of 2019. Defendants cite outstanding discovery obligations in support of their request. Defendants are free to make any necessary motion to continue trial based on problems unrelated to this motion.

CCP §2034.720(d) permits the Court to condition leave on a “reasonable” continuance of the trial date. The Court finds expert designation was due on 5/14/18, and is being accomplished, via this motion, on 6/13/18, approximately one month late. The failure to timely designate experts, therefore, can only be used to justify a one-month continuance of the trial date.

The 6/27/18 trial date is advanced to today’s hearing date and continued to Friday, 7/27/18 at 8:30 a.m. in Department 3 of the Spring Street Courthouse. The 6/15/18 FSC is advanced to today’s date and continued to 7/13/18 at 10:00 a.m. in Department 3. The expert discovery cut-off is continued to reflect the new trial date; no other discovery cut-off dates are continued in light of the trial continuance.

e. Sanctions

§2034.720(d) permits the Court to impose sanctions in favor of the party who opposes the motion. The Court finds imposition of sanctions is necessary. Plaintiff’s showing of excusable neglect was borderline, and Plaintiff’s showing concerning a prompt request for relief is even more borderline.

Defendants seek sanctions in the amount of $1443.75. The Court has reviewed Counsel’s declaration in support of the opposition and finds the amount reasonable and fully supported. Sanctions are sought and imposed against Plaintiff and his attorney of record, jointly and severally; they are ordered to pay sanctions to Defendants, by and through their attorney of record, in the amount of $1443.75, within twenty days.

Plaintiff is ordered to give notice.