Case Number: KC066819 Hearing Date: May 09, 2016 Dept: J

Re: Gabriel Boyadjian v. Antonio J. Bestard, Esq. (KC066819)

MOTION TO AUGMENT PLAINTIFF’S EXPERT DESIGNATION

Moving Party: Plaintiff Gabriel Boyadjian

Respondent: Defendant Antonio J. Bestard

POS: Moving papers are served by regular mail on April 12, 2016, which is less than 16 court days, plus 5 calendar days for mailing, in violation of CCP § 1005(b); Opposing OK

This is a legal malpractice lawsuit filed by Plaintiff Gabriel Boyadjian against his former attorney, Defendant Antonio J. Bestard. The Complaint alleges that in or about August 2009, Plaintiff retained Defendant as his attorney to seek the court’s reconsideration and modification of a child support order in the case of In Re: Marriage of Boyadjian, Pomona Superior Court Case Number KD050814; and that Defendant misrepresented to Plaintiff that his child support order was reduced to $800.00 per month when in fact, the matter was never heard by the court. The Complaint filed on 4/11/14, asserts causes of action for:

1. Professional Negligence
2. Breach of Fiduciary Duty
3. Negligent Misrepresentation
4. Negligent Concealment

A Jury Trial is set for 7/5/16.

MOTION TO AUGMENT:

Plaintiff Gabriel Boydjian (“Plaintiff”) moves for an order augmenting Plaintiff’s expert witness designation pursuant to CCP §§ 2034.610 and 2034.620.

EVIDENTIARY OBJECTIONS:

Defendant’s evidentiary objections to the Declartion of Jimmy P. Mettias are sustained as to nos. 1, 4, 5, 6 and 11; and overruled as to nos. 2, 3, 7, 8, 9, and 10.

Where the additional testimony relates to subjects disclosed in the party’s original exchange, the party must seek leave of court to augment or amend the earlier information, either by: (1) adding subsequently retained experts to the expert witness list; or (2) amending the expert witness declaration to expand the “general substance” of the testimony which any previously designated expert will give. (CCP § 2034.610; see Richaud v. Jennings (1993) 16 Cal.App.4th 81, 91 — “supplemental designation” filed without leave of court held ineffective.)

Absent “exceptional circumstances,” this motion must be made early enough to permit deposing the experts involved before the 15-day “cut-off” on deposing experts. (See CCP §§ 2034.610(b), 2024.030.) The fact an augmentation motion is delayed until trial does not bar relief. Even at that late date, the motion would allow the proponent to show good cause for the delay, allow the opponent to explain the prejudice created, “and, most importantly, allow the court to minimize any continuances and disruption of the litigation.” (Richaud v. Jennings (1993) 16 Cal.App.4th 81, 92.)

To obtain permission to augment or amend the expert witness information previously furnished, the moving party must convince the court as to the following matters CCP § 2034.620):

1. Excuse: It must be shown that the moving party either: could not have been expected in the exercise of reasonable diligence to call that expert or offer the additional testimony at the time of the original exchange; or failed to include the expert or the additional testimony through “mistake, inadvertence, surprise or excusable neglect.” (CCP § 2034.620(c).)
2. Relief sought promptly: Leave to augment or amend is being sought promptly after deciding to call the expert or offer the additional testimony.
(CCP § 2034.620(c)(2)(A).)
3. Information served on all other parties: The moving party has now served on all other parties to the action a copy of the proposed expert witness information pertaining to such expert or testimony. (CCP § 2034.620(c)(2)(B).)
4. Availability for deposition: The moving party will make the witness available immediately for a deposition if leave is granted. (CCP § 2034.620(d).)
5. No prejudice to opposing party: The court must “take into account” the extent to which the opposing party has relied on the expert list furnished by the moving party. Leave to augment or amend may be granted only if the court determines it will not prejudice the opposing party’s ability to maintain its action or defense on the merits. (CCP § 2034.620(a), (b).)
6. Attempt to resolve informally: Finally, with discovery motions generally, factual declarations are required showing a “reasonable and good faith attempt” to resolve informally each issue raised by the motion. (CCP §§ 2016.040, 2034.610(c).)

Granting or denial of relief in these cases lies within the court’s sound discretion, and is subject to appellate review only for abuse of discretion. (See Bonds v. Roy (1999) 20 Cal.4th 140, 149.)

If relief is granted, it must be conditioned on the moving party making the expert available for deposition “immediately” and such other terms as the court deems “just.” (CCP § 2034.620(d).) The order granting relief may also be conditioned on other terms the court finds “just,” including allowing opposing parties to designate additional experts or their previously designated experts to give opinions on additional subjects; ordering a continuance of trial and an award of costs and litigation expenses to opposing parties; or awarding costs and litigation expenses to any party opposing the motion. (Ibid.)

Plaintiff moves to augment his expert witness designation on the following grounds: (1) Plaintiff previously designated an expert in anticipation of the initial trial date which has now been continued to July 5, 2016; (2) issues have arisen regarding the availability and cost of the previously designated expert witness and Plaintiff was forced to de-designate his previously designated expert; (3) the proposed designated expert, Sharon Brunner, had a conflict regarding acting as an expert as of the date of the previous expert designation which has now been resolved; (4) Plaintiff’s previously designated expert was not deposed previously and trial is now two months away; (5) although the discovery cut-off already passed, Plaintiff will stipulate to allow Defendant to depose the proposed designated expert Sharon Brunner; (6) Sharon Brunner is immediately available to be deposed at an agreeable time; and (7) Plaintiff will be extremely prejudiced if he is not allowed to augment his expert witness designation. (Motion, Mattias Decl. ¶¶ 3-11.)

However, the motion is untimely; the time limit for completion of discovery expired over seven months ago (See Court’s January 19, 2016 Minute Order); and Plaintiff fails to demonstrate an “exceptional circumstance” justifying the delay in seeking the relief sought in this motion. Counsel for Plaintiff should have fully explored the anticipated costs that would be incurred when the expert was initially designated.

The court also notes that Plaintiff previously filed an ex parte application for an order augmenting his expert designation on January 12, 2016, which was denied on based on insufficient showing of exigency. Thereafter, on February 23, 2016, Plaintiff served a De-Designation of Mr. Grader as his expert in this matter. (Opposition, Saunders Decl. ¶ 14, Exh. C.) Counsel for Defendant represents that she relied on Plaintiff’s de-designation in preparing for the final status conference and the trial. (Id., ¶ 15.) Plaintiff, thereafter, waited approximately another two month before filing this motion on April 12, 2016. Plaintiff does not give any explanation as to the delay.

Moreover, Plaintiff is not seeking to “substitute” Mr. Grader for another similar expert witness. Mr. Grader is not an attorney. Ms. Brunner is an attorney. Mr. Grader’s testimony was related solely to the use of the Dissomaster program and calculations derived from that program. Ms. Brunner is being offered to testify not only about the calculations of child support, but also as to the propriety of Defendant’s actions and the standard of care. The motion is denied.

SANCTIONS:

A monetary sanction “shall” be imposed against the losing party on a motion to augment or amend expert witness information unless the court finds “substantial justification” for that party’s position or other circumstances make imposition of the sanction “unjust.” (CCP § 2034.630.) It appears that Plaintiff may have had justification in bringing this motion. The court declines to award monetary sanctions.