2009-00053797-CU-CD

Norman B Moss vs. John Mourier Construction Inc

Nature of Proceeding: Motion to Augment Expert Witness Disclosure

Filed By: Scoffield, Lindy H.

Defendant John Mourier Construction, Inc.’s (“JMC”) motion to augment its expert
witness disclosure is GRANTED and if requested, the new expert must be promptly
made available for deposition.

Pursuant to Code of Civil Procedure §2034.620, JMC seeks to augment its expert
witness disclosure by adding Frank Nunes, the Executive Director of the Lathing and
Plastering Institute of Northern California and the President of the Western Conference
of Lathing and Plastering, to respond not only to plaintiffs’ Defect Report dated
4/3/2014 but also to the 4/18/2014 deposition testimony by plaintiffs’ expert Norbert
Lohse, both of which assert that the foam/paper underlayment for the exterior stucco
systems was not installed pursuant to the manufacturer’s recommendations and code
standards. JMC represents that it requested on 4/22/2014 a stipulation to add expert
Nunes but plaintiffs refused, thereby necessitating the present motion to address a
singular, narrow issue now presented.

Plaintiffs oppose, arguing that the late addition of this new expert will cause “significant
prejudice” especially since expert depositions were completed on 4/28/2014 and trial is
set to commence on 5/12/2014, with a five year statute looming in July 2014. The
opposition further asserts that plaintiffs have since the inception of this case been
claiming various stucco failures and water intrusion and thus, JMC either knew or
should have known of the need for the expert now sought to be added.

The Court finds that JMC has established good cause to augment its expert list to
include Mr. Nunes. While it is true that plaintiffs served in 2010 a defect list which included various claims relating generally to the exterior stucco on the subject homes
but a closer review of this defect list reveals no specific claim about the foam/paper
underlayment not being installed consistent with the manufacturer’s recommendations
or code standards. (Schoech Decl., Ex. A, pp. M-JMC003922-3924.) Instead, the
defect list seems to merely cite “stucco cracks,” “stucco gaps,” “stucco separation at…
window/stucco transition,” “window weeps clogged with stucco,” “stucco is
stained/discolored,” “stucco separation at openings,” “stucco buried clean out” and
“unsealed stucco penetration.” The Court finds and plaintiffs have pointed to no
specific entry in this 2010 defect list which so much as suggests that there was any
claim regarding the propriety of the installation of the foam/paper underlayment.
Although a more recent defect report prepared by plaintiffs’ expert specifically
contends the “EPS foam panels used were less than 1 inch thick (7/8-inch foam panels
observed)…,” this particular defect report is dated 4/3/2014. Similarly, the opposition
concedes that plaintiffs’ experts’ files were not placed in the document depository until
mid-April 2014. Thus, it appears this foam/paper underlayment issue is effectively a
new claim which was not disclosed until well after initial expert disclosures were due
on 3/24/2014. For these reasons, JMC’s failure to earlier identify Mr. Nunes as an
expert was not unreasonable under the circumstances.

Plaintiffs’ claim of “significant prejudice” does not withstand scrutiny. First, any
prejudice which might be attributable to the fact that expert depositions were just
completed a few days ago and/or that trial is set to commence on 5/12/2014 could
easily have been minimized, if not completely avoided, had plaintiffs’ assented to
JMC’s 4/22/2014 request for a stipulation to add Mr. Nunes as an expert to respond to
the narrow foam/paper underlayment issue. Second, plaintiffs’ assertion here of some
generalized “prejudice” as a result of having to take the time to prepare for and to
depose this new expert does not actually militate against relief. Instead, Code of Civil
Procedure §2034.620 provides in pertinent part:

“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) …
(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) …” (Emphasis added.)

The mere fact plaintiffs will have to dedicate time to prepare for and to depose this new
expert falls far short of establishing that plaintiffs’ ability to maintain their action on the
merits will be adversely affected. In actuality, this ruling does not impact in any
substantive manner whatsoever plaintiffs’ ability to present the merits of their action
but rather only permits, as principles of justice and fairness require, a defendant to
respond to a specific defect claim which was only recently disclosed. Because the
opposition has failed to demonstrate that the augmentation of JMC’s expert list will
somehow impair plaintiffs’ ability to present the merits of their case, this Court can find
no legitimate “prejudice” which might otherwise weigh against granting JMC the relief it
seeks.

It is also worth noting that in light of the narrow issue on which the new expert is
expected to testify, the amount of time needed to prepare for and complete his
deposition will likely be rather minimal and should have limited impact on plaintiffs’
ability to prepare for trial. Finally, since it appears based on the present record that plaintiffs only recently
disclosed this effectively new foam/paper underlayment claim and then refused to
stipulate to the addition of Mr. Nunes as an expert to address this narrow issue, the
Court declines to condition the granting of this motion on JMC’s payment of any of the
$20,000 in costs and litigation expenses claimed by plaintiffs.

JMC’s motion to augment is granted and if requested, the new expert must be
promptly made available for deposition.

This minute order is effective immediately. No formal order or other notice is required.
(Code Civ. Proc. §1019.5; CRC Rule 3.1312.)