Case Number: BC711916 Hearing Date: March 09, 2020 Dept: 27

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO DESIGNATE TARDY EXPERT WITNESSES

On June 28, 2018, plaintiff Jesus Javier Cruz (“Plaintiff”) filed this action against defendants Yosef Perez and Robert Calgav (collectively, “Defendants”) arising from a July 1, 2016 motor vehicle accident. Plaintiff alleges Perez was operating a car owned by Calgav. Defendants seek to designate three experts late: Isaac Ikram, Ricahrd B. Rhee, M.D., and A.N. Shamie, M.D. Plaintiff objected to these tardy designations, and Defendants filed this motion on February 6, 2020.

Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any person whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. (Code Civ. Proc., § 2034.210, subd. (a).) “On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” (Code Civ. Proc., § 2034.710, subd. (a).) The motion shall be made a sufficient time in advance of the time limit for the completion of discovery 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., § 2034.710, subd. (b).)

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, and (2) sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect; and (d) the order is conditioned on the moving party making the expert available immediately for a deposition, 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. (Code Civ. Proc., § 2034.720.)

Defendants claim that their demand for exchange of expert witness information was scheduled for November 12, 2019, but defense counsel mistakenly calendared the date for December 8, 2019. Defense counsel also states that she was out of town from November 4 to November 8, and therefore did not see that Plaintiff had served expert designations. On November 25, 2019, Defendants applied ex parte for a trial continuance. Plaintiff opposed the application arguing Defendants had not noticed a medical examination or exchanged expert designations. The Court granted the ex parte application and continued the trial date from December 30, 2019 to June 3, 2020. The Court ordered that all discovery dates, except for the date to designate experts, which had already passed, were to be based on the new trial date. Defendants then served expert witness information on December 6, 2019. On December 10, 2019, Plaintiff objected to the tardy expert designations.

Plaintiff argues the Court already found the time for expert exchanges has passed. Plaintiff also argues Defendants could not have been mistaken as to the expert designation deadline because Plaintiff never made any representation that he would agree to continue trial and there was no reason to believe that the deadline to exchange expert information would be after the original discovery cut-off date. Plaintiff does not argue that he relied on the absence of a list of expert witnesses or would prejudiced.

Trial is currently set for June 2, 2020, leaving ample time to conduct expert discovery and depose Defendants’ experts, and Plaintiff will not be prejudiced by allowing the late designations. Plaintiff made a mistake in calendaring the expert exchange date. After the Court stated on November 25, 2019 that the time for expert designations had passed, Defendants exchanged expert designations on December 6, 2019. Defendants argue defense counsel was in trial in December as an excuse for not filing this motion earlier. Defendants could have brought this motion earlier, but only balance given the June 2, 2020 trial date, the motion was prompt enough.

Accordingly, the motion to designate late experts is GRANTED, conditioned on Defendants making the experts available immediately for depositions.

Plaintiff requests sanctions. Sanctions are granted in the amount of $1,575.00 and imposed against Defendants and defense counsel jointly and severally, to be paid within 20 days of the date of this order. (Code Civ. Proc. § 2034.730.)

Moving party to give notice.