Case Number: BC505211 Hearing Date: May 09, 2016 Dept: 92

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES – CENTRAL DISTRICT

GHADA H. SABBAGH,
Plaintiff(s),
vs.

PYRAMID ADVISORS, LLC, ET AL.,

Defendant(s).

CASE NO: BC505211

[TENTATIVE] ORDER DENYING MOTION FOR LEAVE TO AUGMENT EXPERT WITNESS LIST, CONDUCT SECOND IME, AND CONTINUE TRIAL

Dept. 92
1:30 p.m. — #
May 9, 2016

1. Background Facts
Plaintiff, Ghada H. Sabbagh filed this action against Defendants, Pyramid Advisors, LLC, Pyramid Hotels and Resorts, and Los Angeles Marriot Burbank Airport Hotel for damages arising out of a trip and fall incident. The fall occurred while Plaintiff was dancing at a wedding and the heel of her shoe became wedged into a seam between the panels of the dance floor.

2. Procedural History of This Motion
Defendants have filed multiple ex parte applications seeking to compel Plaintiff’s attendance at a second IME, seeking leave to augment their expert witness list, and seeking a trial continuance. Plaintiff has filed opposition to the ex parte applications. With respect to the first ex parte application, on 3/14/16 the Court granted the application in part, setting the matter for hearing on 4/04/16, but the matter was not heard at that time. With respect to the second application, on 4/07/16, the Court denied the ex parte application, finding Defendants failed to make a sufficient showing of immediate or irreparable harm if the matter was not heard on an ex parte basis. On 4/21/16, Defendants made a third ex parte application for the same relief; as a result of this application, the Court advanced the hearing from 6/14/16 to 5/09/16.

At this time, Defendants have filed a noticed motion seeking the same relief previously sought in connection with the ex parte application. The oppositions that apply to the motion are the 3/14/16 opposition to the original ex parte application and the 3/28/16 supplemental opposition to the motion scheduled to be heard on 4/04/16. The Court has read and considered, in connection with this ruling, (a) the notice of motion and motion filed on 4/04/16, (b) the 3/14/16 opposition and 3/28/16 supplemental opposition, and (c) Defendants’ 3/30/16 reply.

3. Motion to Augment Expert Witness List
Defendants, in their moving papers, contend the physician hired by their prior attorneys is under criminal investigation and has been indicted in a RICO case pending in federal court. Defendants seek leave to augment their expert witness list per CCP §§2034.610 and 2034.620.

§2034.610 provides, in pertinent part:
(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.
…
(b) 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.
(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

§2034.620 provides:
The court shall grant leave to augment or amend an expert witness list or declaration 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 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 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.
(d) Leave to augment or amend 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.

Plaintiff, in her original opposition to the ex parte application and her supplemental opposition to the motion, argues Defendants failed to (a) timely designate experts, and (b) name a physician at all as an expert in their untimely exchange. Plaintiff argues that §§2034.610 and 2034.620 only provide recourse if the original exchange is timely, and she also argued that Defendants are not really “augmenting” or “amending,” as Defendants are seeking to add an expert in an entirely new subject area to their designation.

The parties agreed to an expert witness exchange on Friday, 3/04/16. For a variety of reasons, Plaintiff’s exchange was tardy and was conducted on either 3/05/16 or 3/06/16. Defendants’ exchange was conducted on Monday, 3/07/16. Plaintiff correctly notes that §2034.610 only permits amendment or augmentation if the original exchange was timely conducted; otherwise the party must move for leave to conduct a tardy designation, which motion is governed by §2034.710. Because both parties’ exchange was tardy, and because the parties have treated the exchange as though it occurred properly, the Court is not inclined to rule on this motion based on the late designation on 3/07/16.

Plaintiff also argues that leave to amend should not be granted because the 3/07/16 exchange did not list ANY medical expert. Plaintiff argues Defendants knew, prior to 3/07/16, that Dr. Larsen’s ability to testify was compromised. Indeed, Defendants’ own motion indicates they obtained this knowledge on 2/29/16; it appears clear that this is why Dr. Larsen was not listed in the 3/07/16 expert exchange.

The moving papers are devoid of discussion of what happened between 2/29/16 and 3/07/16. The Declaration of Counsel in support of the motion does not mention what efforts were made to retain an expert during that time. It does not appear Defendants sought a continuance of the expert exchange, or attempted to retain an alternative expert during this admittedly brief period of time. Defendants fail to explain how they were unable to retain an expert from 2/29/16 to 3/07/16, but they were able to do so in time to file their first request for relief on 3/14/16.

The matter is made further complicated by the fact that Defendants failed to show Dr. Larsen is actually subject to pending federal RICO criminal charges. As Plaintiff correctly notes in both of her oppositions to the motion, the only document attached to the motion is a civil complaint by the State Compensation Insurance Fund against numerous doctors and medical entities; the complaint is a civil fraud complaint. It is not a federal criminal complaint, and there is no evidence of a federal indictment. Additionally, Plaintiff contends in opposition that Dr. Larsen continues to practice medicine and has not had his license revoked. Defendants do not, in reply, address these contentions.

The motion for leave to augment is denied on the grounds that Defendants failed to show good cause for their failure to designate a medical expert, failed to show Dr. Larsen does not qualify as an expert, and failed to show they acted promptly upon discovery of the litigation pending against Dr. Larsen.

4. Compel Second Defense IME
Defendants also seek to conduct a second DME, with another physician, contending Dr. Larsen’s pending criminal proceedings provide “good cause” for a second examination. Defendants seek to have Plaintiff examined by Dr. Sisto; they agree to provide compensation for travel to and from the examination. The motion is denied for the reasons discussed above; additionally, as Plaintiff correctly notes in opposition, Defendants have not shown “good cause” to conduct a second examination, and could easily provide Dr. Larsen’s report and notes to another expert if the Court permitted Defendants to name one.

5. Motion to Continue Trial
Defendants move to continue trial on two grounds – to permit the parties to engage in the additional IME, and to permit the parties to complete a site inspection of the subject dance floor. With respect to discovery concerning the IME, the motion is denied as the relief above is denied. With respect to the dance floor, the Court will hear argument on this issue at the time of the hearing. The Court notes that all of the papers were filed over a month ago, and the Court is hopeful that issues concerning the dance floor have been resolved. The Court notes that Plaintiff opposes a trial continuance, and it is Plaintiff who seeks to inspect the dance floor; if Plaintiff has completed the inspection, or if Plaintiff is willing to forego the inspection, the Court will deny the request for a trial continuance and the trial will go forward on 5/10/16 as currently scheduled.

Dated this 9th day of May, 2016

Hon. Michelle Williams Court
Judge of the Superior Court