Case Number: KC065655 Hearing Date: May 01, 2014 Dept: O

UNT Atia Co. II, LP v. American Stores Company, LLC (KC065655)

1. Plaintiff-in-Intervention Tawa Supermarket Inc.’s MOTION FOR ORDER STRIKING SUPPLEMENTAL EXPERT WITNESS DESIGNATION AND EXCLUDING TESTIMONY OF EXPERT WITNESS AT TRIAL

Respondent: Defendant-in-Intervention UNT Atia Co. II, LP

2. Plaintiff-in-Intervention Tawa Supermarket Inc.’s MOTION IN LIMINE 1

Respondent: Defendant-in-Intervention UNT Atia Co. II, LP

TENTATIVE RULING

1. Motion to Strike Expert Designation

Plaintiff-in-Intervention Tawa Supermarket Inc.’s motion for order striking supplemental expert witness designation and excluding testimony of expert witness at trial is GRANTED.

After the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses to the following extent: (a) Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any natural person, including one who is a party, whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. (b) If any expert designated by a party under subdivision (a) is a party or an employee of a party, or has been retained by a party for the purpose of forming and expressing an opinion in anticipation of the litigation or in preparation for the trial of the action, the designation of that witness shall include or be accompanied by an expert witness declaration under Section 2034.260. (c) Any party may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, made by any expert described in subdivision (b) in the course of preparing that expert’s opinion. (CCP 2034.210.)

On 12/10/13, Tawa personally served a demand for exchange of expert witnesses. That demand required the parties to designate experts on or before 12/30/13. The last day to designate supplemental expert witnesses was 1/21/14. (CCP 2034.280(a).)

UNT failed to timely designate Jenkins, and failed to seek leave to augment its expert list per CCP 2034.610 and 2034.620. In opposition, UNT contends that the parties agreed to extend the deadline, but UNT presents no proof of this agreement. In Reply, Tawa disputes this contention.

As of this date, UNT still has not moved to augment its expert list per CCP 2034.610 and 2034.620, and even if UNT’s opposition can be construed as such motion, UNT has not demonstrated reasonable diligence and/or mistake, inadvertence, surprise, or excusable neglect, as Tawa’s mitigation of damages is not a new issue. Motion is GRANTED.

2. Motion in Limine No. 1

Plaintiff-in-Intervention Tawa Supermarket Inc.’s motion in limine 1 is GRANTED.

This court previously granted Tawa’s MSA, finding that the Lease and Assignment were in full force and effect. Therefore, any further evidence relating to the validity of the Lease is precluded. (McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 291-298 – court upheld trial court’s motion in limine order precluding Plaintiff from presenting evidence and argument on matters determined by the trial court’s pretrial grant on Defendant’s MSA.)

Further, Tawa complied with Local Rule 3.57 by submitting the declaration of Gibbs in support of the MILs, detailing the matters to be precluded, and outlining Tawa’s prejudice if UNT was allowed to re-litigate matters which have already been determined by this court.

Finally, the court already ruled on UNT’s stay argument on 11/5/13, ruling that there is no blanket stay. The only matter mandatorily stayed by UNT’s appeal is this court’s enforcement of the narrow mandatory injunction on the 6th cause of action, which order is not at issue in the upcoming trial.

Motion is GRANTED.