Case Number: BC316696 Hearing Date: July 03, 2014 Dept: 34

Moving Party: Defendant Philip Markowitz (“Markowitz” or “defendant”)

Resp. Party: Plaintiff Blue Water Sunset LLC (“plaintiff”)

Defendant’s motion is DENIED.

PRELIMINARY COMMENTS:

In the opposition, plaintiff primarily argues that defendant should not be allowed to present any expert testimony at trial. Plaintiff takes issue with the fact that defendant’s previous expert designation was untimely, argues that the remaining issues in this action do not warrant expert testimony from an accountant, and asserts that expert testimony should be excluded because defendant did not comply with Code of Civil Procedure section 2034.300 with regard to the previously designated expert.

The Court declines to determine this issue in the instant motion. Plaintiff has not moved to strike defendant’s expert witness designation. Moreover, the issue of whether defendant’s expert may testify would be more properly addressed in a timely motion in limine. The instant motion does not pertain to whether defendant’s expert may testify; defendant only seeks to amend his expert designation. Plaintiff’s request for affirmative relief in its opposition – which was served only 9 court days before the hearing – is not proper. (See Code Civ. Proc., § 1005(b) [moving papers must be served at least 16 court days before the hearing].)

BACKGROUND:

Plaintiff commenced this action on June 4, 2004, against defendants asserting eleven causes of action. On April 14, 2009, plaintiff filed a fifth amended complaint (“5AC”) against defendants for: (1) judicial dissolution of First View LLC; (2) judicial dissolution of Rail Prop LLC; (3) appointment of receiver for Rail Prop LLC; (4) judicial dissolution of Markowitz Investment Group LLC; (5) rescission of addendum to M.I.G. operating agreement; (6) fraud; (7) breach of contract; (8) breach of fiduciary duty; (9) refusal to make distribution; (10) accounting; and (11) declaratory relief.

Plaintiff was and is a 50% member of defendants First View LLC (“FV”), Rail Prop LLC (“RP”) and Markowitz Investment Group LLC (“MIG”); and defendant Philip Markowitz claims he was and is the other 50% member, which plaintiff disputes. (5AC ¶ 9.) Defendant caused certain parcels of property belonging to RP to be titled under Four Star General Properties, LLC (“Four Star”), a limited liability company of which defendant Markowitz is the sole member and manager. (Id., ¶¶ 10-11.) Plaintiff alleges that Four Star should be declared the alter ego of RP and the parcels should be traceable to RB, due to admissions of the language inserted by Markowitz in the deeds. (Id., ¶ 11.) Plaintiff also alleges that Four Star is the alter ego of Markowitz. (Id., ¶ 12.)

Plaintiff alleges that FV and Markowitz have failed to keep accurate books and records and have failed to file tax returns. (Id., ¶ 14.) Plaintiff alleges that Markowitz is guilty of fraud, mismanagement, abuse of authority. (Id., ¶ 17.) Plaintiff makes similar allegations about RP and MIG. (See id., ¶¶ 20-21, 24-26, 33, 36.)

On July 15, 2001, plaintiff and Markowitz entered into a written agreement entitled “Addendum to Limited Liability Company Operating Agreement of Markowitz Investment Group LLC,” whereby the parties promised to contribute certain assets as additional capital contributions to MIG. (Id., ¶ 39.) Plaintiff alleges that the representation made by Markowitz was a representation of a promise without the intent to perform. (Ibid.) Markowitz has failed and continues to fail to contribute to the MIG properties listed in the agreement. (Id., ¶ 50.)

Plaintiff alleges Markowitz breached his fiduciary duties to plaintiff with respect to the operation and management of the LLCs. (Id., ¶¶ 55-59.)

On May 27, 2009, Markowitz filed an answer to plaintiff’s fifth amended complaint, which asserted twenty-one affirmative defenses.

On July 20 through 23, 2009, the Court, the Honorable Rex Heeseman presiding, held a bench trial to determine contract interpretation and related issues. The Court issued a decision on July 30, 2009, which found that pre-execution verbal representations concerning future contributions were barred by the parol evidence rule, but post-execution verbal representations were allowed to be presented at trial. The Court declines to decide issues as to fraud, waiver, estoppel, reliance, and related matters.

On October 7, 2009, the Court denied defendant’s motion to dismiss for failure to bring the action to trial within five years, finding that trial had commenced with the July 20, 2009, bench trial.

A jury trial was to be held in February and March 2010, but the matter was stayed pending review of plaintiff’s verified statement of disqualification. The stay was lifted on March 11, 2010. After several continuances, a jury trial was commenced on October 27, 2010, and continued into November 2010.

On November 15, 2010, Judge Heeseman recognized that a verified statement of disqualification and request for reassignment had been filed. Judge Heeseman thereafter transferred the case to the Supervising Judge for reassignment. The case was reassigned to the Honorable Judge Ramona G. See.

Judge See determined that the jury verdict rendered on November 4, 2010, was null and void and that the action would be re-tried, but that rulings made by Judge Heeseman prior to October 22, 2010, need not be vacated. (See Minute Order dated 12/2/2011.) A new trial date was set for June 29, 2012. Trial was eventually continued to April 30, 2013. This trial date was taken off calendar on March 19, 2013.

On May 31, 2012, the Court ruled on plaintiff’s motion for summary adjudication of causes of action asserted in Markowitz’s fourth amended cross-complaint. The Court granted the motion as to the first, second, fourth, fifth, and sixth causes of action.

On July 3, 2012, plaintiff filed a motion for summary adjudication of the third and seventh causes of action in the fourth amended cross-complaint, as well as the first, second, eighth, ninth, tenth, eleventh, and twelfth affirmative defenses in Markowitz’s answer to the fifth amended complaint. The Court granted the motion in its entirety on October 2, 2012.

On November 16, 2012, plaintiff filed a motion for summary adjudication of the fourth, fifth, sixth, seventh, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, twentieth, twenty-first, twenty-second, and twenty-third affirmative defenses in Markowitz’s answer to the fifth amended complaint. On March 21, 2013, Markowitz filed a motion for summary judgment/adjudication of plaintiff’s fifth amended complaint.

After several continuances, the motions were heard on December 4, 2013. The Court granted plaintiff’s motion as to all but the eighteenth affirmative defense. The Court denied defendant’s motion because it was based on affirmative defenses that were not properly alleged in its answer.

On 1/24/14 the Court denied plaintiff’s motion for sanctions against defendant.

ANALYSIS:

Defendant asserts that leave to amend his expert witness designation is necessary because his previous forensic accounting expert is no longer available to testify at trial or conduct an accounting analysis.

(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.

(Code Civ. Proc., § 2034.610(a).)

In ruling on a request for leave to amend an expert designation, a court must determine 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.

(Code Civ. Proc., § 2034.620(c).)

Defendant fails to provide evidence as to either of these requirements. Though defendant asserts that the previous expert is no longer available, defendant provides no admissible evidence to support this assertion. The motion does not include a declaration stating that the previous expert is not available or, more importantly, when defendant became aware that he would not be available. Indeed, the only document which discusses the unavailability is the meet and confer letter attached as defendant’s exhibit 2. Aside from the fact that this letter constitutes inadmissible hearsay, the letter also fails to provide any facts as to the previous expert’s purported unavailability. (See Def. Exh. 2.) Therefore, it is unclear whether defendant could have determined to call the new expert at the time of the prior expert designation or if defendant’s failure to designate the witness earlier was the result of mistake, inadvertence, surprise, or excusable neglect.

Moreover, defendant fails to establish that this motion is timely. “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.” (Code Civ. Proc., § 2034.610(b).) “Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a witness identified under Chapter 18 (commencing with Section 2034.010) on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.030.)

Assuming, for purposes of this motion, that the previous trial dates vacated by Judge See should be disregarded, the date “initially set for the trial” is 6/29/12. Since that time, the trial has been continued numerous times:
· on June 15, 2012 trial was continued to Nov. 14, 2012;
· on Oct. 16, 2012, trial was continued to Jan. 24, 2013;
· on Nov. 9, 2012, trial was continued to April 19, 2013;
· on Dec. 12, 2012, trial was continued to April 30, 2013;
· on March 13, 2013, trial was taken off-calendar;
· on Feb. 7, 14, trial was set for August 11, 2014.

Defendant fails to show that the Court at any point continued the deposition cut-off date when the trial dates were continued. (See Minute Orders dated 5/15/12; 6/15/12; 10/16/12; 11/9/12; 12/11/12; 3/19/13; 2/7/14.) Defendant has not directed the Court to any motion by him to reopen discovery. Therefore, as far as can be determined from the pleadings, the time limit for completion of depositions, and thus the deadline for the instant motion, was 6/14/12.

Defendant must establish “exceptional circumstances” in order to obtain leave to amend at this late date. (See Code Civ. Proc., § 2034.610(b).) Defendant fails to make such a showing. Defendant asserts that an amendment is necessary because his previous expert is no longer available. As discussed above, defendant fails to provide any admissible evidence to support this assertion.

Defendant’s motion is DENIED.