On 28 March 2014, the motion in limine of Alan Heimlich (“Plaintiff”) to exclude expert witness testimony and for monetary sanctions was argued and submitted. Shiraz Shivji (“Defendant”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, Rule 3.1110(f).

Statement of Facts

This case arises out of an attorney fee dispute. Plaintiff is a patent attorney retained by Defendant in 2003. According to the allegations of the complaint, Defendant signed an agreement whereby he agreed to pay Plaintiff in exchange for legal services. Defendant allegedly accumulated an outstanding account balance of over $125,000 in legal fees owed to Plaintiff, but refused to pay the fees. Based on these allegations, on 10 September 2012, Plaintiff instituted this action against Defendant for breach of contract.

Dispute Giving Rise to Plaintiff’s Motion

On 29 October 2013, Defendant disclosed Bill Becker as one of Defendant’s expert witnesses. The disclosure identifies Mr. Becker as a patent attorney and indicates that he will testify on professional legal standards, including reasonable billing practices.

Also on 29 October 2013, Plaintiff disclosed James Wu as an expert witness. Plaintiff’s disclosure indicates that Mr. Wu will testify on matters including attorney-client fee agreements, prosecuting patents, ownership and assignment of patents, interest charges, billing frequency, law firm naming practices, document review, analysis of Plaintiff’s work, reasonableness of fees, and other standards of professional conduct at issue in the case.

On 19 November 2013, Defendant submitted a supplemental expert disclosure, naming Stephen Reiss as an expert. The supplemental disclosure identifies Mr. Reiss as a certified public accountant and Defendant asserts that he was identified as a supplemental expert based upon Plaintiff’s disclosure of Mr. Wu—which indicated that Mr. Wu would testify on accounting matters.

Plaintiff took the deposition of Mr. Reiss on 13 December 2013. At the beginning of the deposition, Mr. Reiss indicated that he was prepared to testify about the disputed fees for fixed charges but that he had not finished his analysis and was not prepared to testify as to the other matters listed in his expert disclosure. Counsel for Plaintiff took issue with Mr. Reiss not having finished his analysis, stating that “we’ve noticed it [the deposition] today and . . . we’re not going to come back again. Either he is ready to testify today with regard to all his opinions or he’s not.” (Decl. of Heimlich, Ex. D, pp. 17-18.) Counsel for Plaintiff refused to ask Mr. Reiss any further questions after Mr. Reiss indicated that he was not prepared to give a complete opinion. The deposition lasted for less than one hour.

On 27 January 2014, Plaintiff filed a “Notice of Motion and Motion to [sic] In Limine to Exclude Defendant’s Expert Witness Testimony of Stephen M. Reiss.” Defendant filed an opposition to the motion on 17 March 2014.

On 19 March 2014, after apparently failing to receive a copy of Defendant’s opposition, Plaintiff filed a reply, indicating that he had not received the opposition and requesting that, if Defendant files and opposition, Plaintiff would like an opportunity to respond.

On 21 March 2014, after receiving Defendant’s opposition, Plaintiff filed another reply.

Also on 21 March 2014, Defendant filed a surreply. The surreply asserts that, on 19 March 2014, counsel for Defendant received a telephone message from counsel for Plaintiff in which Plaintiff’s counsel accuses of supplying the Court with “blatant lies.” A transcript of the message is reproduced in the sur-reply and Defendant has provided a copy of the message to the Court on a compact disc. The message states, among other things, that “it’s inappropriate to be lying to the court about what occurred in a deposition . . . [and that] I’m tired of the games, I’m tired of the lying, and I will hold you accountable for it, and if I have to go for sanctions for this then I will.” (Def.’s Sur-Reply, p. 2.)

Discussion

I. Plaintiff’s Motion In Limine to Exclude Expert Testimony

Plaintiff’s motion is styled as a motion in limine and seeks an order excluding Defendant from offering the expert testimony of Mr. Reiss. Plaintiff asserts that Defendant failed to comply with Code of Civil Procedure section 2034.280, subdivision (a), which sets forth the procedures and requirements for the submission of supplemental expert disclosures. The section authorizes parties to supplement their expert disclosures and add an expert to cover a subject on which the opposing party indicates it plans to offer expert testimony, and on which it had not previously retained an expert to testify. (Code Civ. Proc. [“CCP”], § 2034.280, subd. (a); see also Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1025.) Plaintiff contends that Mr. Reiss is not a “supplemental” expert witness within the meaning of the statute because he was disclosed to discuss the same subjects designated in the original expert exchange. In other words, according to Plaintiff, Mr. Reiss’ testimony is cumulative rather than supplemental.

Additionally, notwithstanding the perceived problems with Defendant’s supplemental disclosures, Plaintiff argues that Mr. Reiss is not qualified to testify as an expert under Evidence Code section 720, which sets forth the qualifications for expert witnesses. Specifically, Plaintiff asserts that Mr. Reiss lacks the requisite special knowledge of legal billing practices that would authorize him to give expert opinions on such matters.

Based on these assertions, Plaintiff contends that Mr. Reiss’ testimony should be excluded under Evidence Code section 803—authorizing the court to exclude opinion testimony upon objection—and that sanctions should be imposed on Defendant and his counsel.

As a threshold matter, while various authorities are cited in the motion regarding the supplemental expert witness disclosure rules and the exclusion of expert witness testimony at trial for a party’s failure to comply with the disclosure rules, Plaintiff does not cite any authority authorizing the motion in the first instance. The failure to set forth the grounds upon which relief may be granted is grounds for the denial of a motion. (See CCP, § 1010; Cal. Rules of Court, rule 3.1110(a); People v. Am. Sur. Ins. Co., (1999) 75 Cal.App.4th 719, 726.)

Moreover, the motion was not filed in the proper department. The County of Santa Clara’s Local Rules of Court, rule 8(D) provides, in relevant part, the following:

[T]he following items must be lodged in the department of the trial judge or, if none, with the Court’s calendar secretary, and served on all other parties by noon on the last court day before the date set for trial: (1) all in limine motions . . . (Sup. Ct. Santa Clara County, Local Rules, rule 8(D)(1), emphasis added.)

Plaintiff’s motion is styled as a motion in limine. Such motions are brought before the trial court for the purpose of excluding evidence. (See People v. Morris (1991) 53 Cal.3d 152, 188.) Indeed, the exclusion of evidence is precisely the relief Plaintiff seeks through the motion presently before the Court. Plaintiff has failed to provide any authority for the proposition that the motion at hand is properly before the Discovery Department. As such, the Court is without authority to rule on the motion other than to deny it.

Based on Plaintiff’s failure to set forth the grounds upon which he seeks relief, his motion in limine to exclude expert testimony is DENIED WITHOUT PREJUDICE to Plaintiff re-filing the motion in the department of the trial judge or, if the case has not yet been assigned to a trial judge, with the Court’s calendar secretary.

II. Requests for Sanctions

A. Plaintiff’s Request

Plaintiff seeks sanctions against Defendant and his counsel in the amount of $2,680.20 under Code of Civil Procedure section 2023.030, subdivision (a). That section only authorizes an award of sanctions for the misuse of the discovery process “[t]o the extent authorized by the chapter governing any particular discovery method.” (CCP, § 2023.030, subd. (a), emphasis added.) Even if Plaintiff had prevailed on his motion, he has not cited any statutory authority authorizing the Court to impose sanctions. Consequently, his request for monetary sanctions is DENIED.

B. Defendant’s Request

Defendant requests the imposition of sanctions against Plaintiff in the amount of $3,923. Like Plaintiff’s request, Defendant cites Code of Civil Procedure section 2023.030, subdivision (a), as the basis for the Court’s authority to impose sanctions. As discussed above, section 2023.030 does not authorize the Court to impose sanctions—it authorizes sanctions “to the extent authorized” by the sections governing the various discovery mechanisms authorized in the code. (CCP, § 2023.030, subd. (a).) Because Defendant has failed to cite any authority authorizing the Court to impose sanctions, his request is DENIED.

Conclusion and Order

Plaintiff’s motion in limine to exclude expert witness testimony was improperly filed with the Discovery Department and is therefore DENIED.

Plaintiff’s and Defendant’s mutual requests for monetary sanctions are DENIED.