Case Number: BC602509 Hearing Date: February 27, 2018 Dept: 46

Case Number: BC602509
WILLIAM MORSCHAUSER VS STATE BOARD OF EQUALIZATION

Filing Date: 11/25/2015
Case Type: Other Compl-not Tort or Complex

02/26/2018
Conference-Case Management

Motion for Reconsideration

William G. Morschauser dba Friar Tuck’s Bar & Grille Motion to Reconsider, per CCP §1008, the court’s order granting Defendant’s Motion in Limine #2, on 9/26/17 is unnecessary as the court never issued a final order; however, to the extent that it is required, the motion is GRANTED.

The court construes the motion as a motion pursuant to CCP §473(b) as CCP §1008 is not the proper section. The court reconsiders the motion in limine to exclude Plaintiff’s expert Ian Foster. Plaintiff’s motion fails to provide adequate evidence or facts to indicate that the granting of this motion would eviscerate his case as prohibited by Staub, 226 Cal. App. 4th at page 1448.

Therefore the motion in limine excluding Ian Foster as an expert is GRANTED.

Case Management Order follows the discussion on the Motion in Limine.

DISCUSSION

The original tentative ruling was not made into a final order on 9/26/2017 and is not part of the court file, so it is unclear that any final order was made. Further, the court intended to receive argument as to the tentative ruling at the time of the second FSC which did not go forward. Plaintiff has already obtained relief as to the dismissal entered at the time of the second FSC. On the same basis any order on Motion in Limine #2 is set aside subject to being raised again at the time of the final status conference.

It is not even clear at this point that this court actually issued an order from which Plaintiff needs to seek relief. Defendant filed a Notice of Ruling on 9/26/17 which indicates that the court “adopted its tentative ruling…granting the motion.” However, the court has found no formal tentative ruling in its records, and the minute order from 9/26/17 reflects only the order of dismissal. The order of dismissal preempted and mooted any ruling on a motion in limine. Therefore, no proper order of this court exists from which Plaintiff need seek relief.

Therefore, the court reconsiders this motion in limine pursuant to CCP §473(b) and treats this as a continued hearing on Defendant’s motion in limine #2.

Late Expert Designation

CCP § 2034.300 reads in relevant part as follows:

“Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:

(a) List that witness as an expert under Section 2034.260.

(b) Submit an expert witness declaration.

(c) Produce reports and writings of expert witnesses under Section 2034.270.

(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”

CCP § 2034.720 reads in relevant part:

“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.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order 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.”

“The exclusion sanction applies only if the failure to comply with the expert witness exchange requirements was “unreasonable.” [CCP § 2034.300]. Although CCP § 2034.300 does not define “unreasonable,” the “operative inquiry” is whether the party’s conduct compromises the purposes of the discovery statutes. [Staub v. Kiley (2014) 226 CA4th 1437, 1447, 173 CR3d 104, 111]” Weil & Brown et al., Cal. Prac. Guide Civ. Proc. Before Trial (The Rutter Group 2017) ¶ 8:1719.1.

The relevant purposes of the discovery statutes are: (1) to assist in ascertaining the truth, (2) to encourage settlement by educating the parties on their respective cases, (3) to expedite and facilitate trial preparation, (4) to prevent delay, and (5) to safeguard against surprise. Staub, supra, 226 C.A.4th at 1447. “The Supreme Court has noted that the need for pretrial discovery is greater with respect to expert witnesses than ordinary fact witnesses because the opponent must prepare to cope with the expert’s specialized knowledge.” Boston v. Penny Lane Centers, Inc. (2009) 170 C.A.4th 936, 951.

“There is no statutory requirement that the objecting party give the opposing party opportunity to correct the defects before trial. But failure to do so may be ground for finding that the opposing party’s failure to comply was not “unreasonable” (¶ 8:1719.1). [Boston v. Penny Lane Ctrs., Inc. (2008) 170 CA4th 936, 954, 88 CR3d 707, 722 (citing text)]… Nor is there any statutory requirement that the objecting party have been prejudiced from the nondisclosure in order to object to the expert testimony at trial. Again, however, absent some showing of prejudice, the court may be more likely to find that the failure to comply with the expert witness disclosure requirements was not “unreasonable.”” Weil & Brown, supra, at ¶¶ 8:1712-8:1713. Likewise, where exclusion of an expert or experts would effectively create a terminating sanction, testimony should be permitted in the absence of evidence showing discovery abuse. Staub, supra, 226 C.A.4th at 1448 (“the order excluding plaintiffs’ experts from testifying at trial was in effect a terminating sanction, as it eviscerated plaintiffs’ case… there was no history of discovery abuse by plaintiffs which would warrant the imposition of a terminating sanction”).

D TFA served its demand for expert witness information on 4/19/17; the simultaneous exchange called for by the discovery code was to occur on 5/9/17. (Declaration of Charles Tsai [hereinafter “Tsai Dec.”] ¶ 2). D TFA served P with its expert information on 5/8/17. (Id. ¶ 3). On 7/14/17, P identified Ian Foster (hereinafter “Foster”) as an expert witness. (Id. ¶ 4). On 8/5/17, D TFA served Foster with a deposition subpoena; on 8/14/17, nine days later, D TFA filed the instant motion. (Id. ¶¶ 5, 7). On that same date, P provided D TFA with the formal expert witness designation for Foster. (Id. ¶ 8). At this point in time, trial was scheduled for 9/20/17, a little over a month away. D TFA was able to depose Foster on 8/31/17-9/1/17. (Id. ¶ 12). On the dates of the deposition and on 9/5/17, D TFA was provided with various materials authored by Foster, and a study on which he intended to rely. (Id. ¶¶ 13-16).

At the outset, Section 2034.720, though cited in the original opposition, is no help to Plaintiff. By its plain terms, it only applies where the party who has failed to timely serve expert witness information seeks leave to do so. CCP §2034.720(c)(2). It does not provide grounds to defeat a motion in limine.

The designation of Foster as outlined above can only be described as sloppy. P’s explanation is that the parties had an understanding that discovery would cease while they tried to settle the case, in part with help from their MSC judge (Judge Zaven Sinanian). P claims that he was blindsided by motions to compel from D TFA on 6/28/17, at which point he hastily attempted to get up to speed. It is true that where a party agrees to a certain modus vivendi, any later objections based thereon are forfeit. Tesoro Del Valle Master Homeowners Assn. v. Griffin (2011) 200 C.A.4th 619, 640-641. But P has produced no contemporaneous record indicating that the parties agreed to stop discovery generally, or expert discovery in particular. And the service upon him of D TFA’s expert information should have awakened him to the fact that the understanding had become a misunderstanding. In the time leading up to trial and with deadlines either past or about to close, P’s unilateral disarmament without a written or recorded agreement from D TFA was unwise at best. P’s failure to seek permission to serve tardy information, or to respond in any way to the designations served by D TFA, was unreasonable.

Plaintiff makes the additional argument that D TFA already had the documents and study the expert intended to rely on, which had been produced years ago during the administrative review which preceded this case. That is of little weight; parties are not expected to pre-emptively prepare for expert testimony on every document in the whole history of a case, particularly a case which has generated as many documents as this one.

P argues that D TFA has waived any objection to the late designation of Foster by taking Foster’s deposition. Both parties agree that there is no direct authority on the issue of waiver in this context. However, Boston, supra, 170 C.A.4th 936, is instructive. In that case, a party received late expert reports from the opposition; rather than depose the experts, seek a continuance, or move to make its own late designation, it simply moved in limine to exclude the experts. Id. at 953-954. The trial court expressly asked the moving party if it had made a tactical decision to “put all your eggs into this motion basket as opposed to proceeding on parallel tracks” and received an affirmative answer. Id. at 954. The Court of Appeal held that the moving party’s strategic decision not to mitigate the unfairness caused by the late disclosures was ground to find the late disclosures reasonable. Id. Therefore, Boston implicitly endorses the dual-track approach followed by D TFA in this case.

The Court of Appeal has expressly rejected the idea that a party’s late designations are automatically reasonable “as long as the opposing party is given an opportunity to depose the expert.” Id. Yet that is essentially what P is inviting this court to find, albeit through the back door. It is fairly clear from Boston that not taking an expert’s deposition risks a finding that the late designation was reasonable. But if taking the deposition results in a finding of waiver, the end result is a judicially-created loophole in the discovery code. The party that follows the rules can’t win. This is an unacceptable result.

It is unclear from the papers how much of P’s case depends on this expert. Therefore court does not have enough information to determine whether granting this motion would effectively create a terminating sanction in contravention of Staub, supra, 226 C.A.4th at 1448. It is Plaintiff’s burden to produce this information and none was produced.

Therefore, the motion to exclude Ian Foster is granted.