Masada v. Almaden Tower Venture, LLC, et al.		CASE NO. 111CV201721
DATE: 19 December 2014	TIME: 9:00	LINE NUMBER: 2

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 18 December 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 19 December 2014, the motion of plaintiff Yllka Masada (“Plaintiff”) for (1) an order permitting Plaintiff to augment and/or supplement her expert witness list/disclosure and (2) an order directing Kenneth Tersini to answer deposition questions about defendant West Santa Clara Associates, LLC’s insurance coverage, assets and present operational status was argued and submitted.  Defendants Almaden Tower Venture, LLC and Spring Capital GP, LLC, KT Properties, Inc., and Webcor Builders, Inc. filed formal oppositions to the motion.

1. Statement of Facts

According to the allegations of the Second Amended Complaint, on 25 April 2010, Plaintiff purchased a two-bedroom unit in the Axis Building from defendant Almaden Tower Venture, LLC (“Almaden”).  Despite the increased cost, Plaintiff decided to have cork underlayment placed under all of the hardwood flooring in her unit as well as more expensive hardwood flooring.  Plaintiff decided to use window coverings that were made of lighter material for her living room area and guest bedroom and she chose window coverings that were made of much thicker material to be placed in her master bedroom so she could maintain her privacy.  On 12 May 2010, the purchase agreement was modified without Plaintiff’s permission, in that Almaden would not be providing Plaintiff a previously promised $15,000 credit, but would instead apply the credit toward Plaintiff’s upgrades, for which she had already paid half the cost.

During a walk-through prior to moving into the unit, Plaintiff discovered that her hardwood flooring was not properly installed because it felt crunchy and soft when she walked on it.  Plaintiff was told that the reason the flooring felt soft was because there was no cork underlayment placed underneath it.  In fact, the hardwood flooring and cork underlayment that was originally installed in the kitchen was removed when Plaintiff’s more expensive hardwood flooring was installed.  Plaintiff left a key to her unit with defendant Pacific Marketing Associates, Inc. so the hardwood flooring issue could be fixed.  Plaintiff later received an email instructing her not to go into her unit because a chemical had been injected underneath the hardwood flooring to correct the problem even though Plaintiff never gave anyone permission to do so.  Despite these issues, Plaintiff moved into her unit on 14 June 2010.

After moving in, Plaintiff noticed that her window coverings had not been properly installed; there were large gaps between the window coverings.  Further, Plaintiff discovered that cigarette smoke would come into her unit from the adjacent units.  On 13 October 2010, Plaintiff was forced to relocate to a different unit.  She contacted a Stanford scientist and researcher, Dr. Neil E. Klepeis, Ph.D., who tested the units for cigarette smoke contamination levels.  His tests revealed that the peak levels of smoke concentration in the original unit were comparable to those in a smoky casino.  As a result of the secondhand smoke, Plaintiff suffered severe personal injuries, including but not limited to her nasal passages, lungs, and body, requiring emergency medical treatment, extended medical care, and hospital treatment.

On 30 October 2013, Plaintiff filed the Second Amended Complaint, which sets forth the following causes of action: [1] Breach of Contract; [2] Breach of Implied Covenant of Fitness for a Particular Purpose; [3] Rescission; [4] Construction Defect; [5] Fraudulent Concealment; [6] Negligent Misrepresentation; [7] Negligence; [8] Negligence – Res Ipsa Loquitur.

1. Discovery Dispute

On 21 November 2014, Plaintiff filed the instant motion for (1) an order permitting Plaintiff to augment and/or supplement her expert witness list/disclosure and (2) an order directing Kenneth Tersini to answer deposition questions about defendant West Santa Clara Associates, LLC’s insurance coverage, assets and present operational status.  On 8 December 2014, defendants Almaden and Spring Capital GP, LLC filed papers in opposition to the motion.  On 8 December 2014, defendant KT Properties, Inc. filed papers in opposition to the motion.  On 8 December 2014, defendant Webcor Builders, Inc. filed papers in opposition to the motion.

III.     Discussion

1. Legal Standard

On motion of a party who has engaged in a timely exchange of expert witness information, the court may grant leave to 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.  (Code Civ. Proc, § 2034.610, subd. (a)(1).)  Such a motion must be made at a sufficient time in advance of the time limit for the completion of discovery to permit the deposition of any expert to whom the motion relates to be taken within that time limit.  (Code Civ. Proc., § 2034.610, subd. (b).)  Under exceptional circumstances, the court may permit the motion to be made at a later time.  (Code Civ. Proc., § 2034.610, subd. (b).)

A 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 had 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 of 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 on all other parties who have appeared in the action.  (Code Civ. Proc., § 2034.620.)

1. Analysis.             

Plaintiff originally served her disclosure of expert witnesses on 31 March 2014.  On 19 November 2013, Plaintiff served an augmented disclosure of expert witness list.  Plaintiff seeks to add three expert witnesses: (1) general contractor Daniel J. Dowling; (2) licensed realtor Kerry Sexton; and (3) an unnamed environmental hygienist or chemist.

Plaintiff asserts that at the time she served the original disclosure she was not represented by counsel.  Her current counsel filed a substitution of attorney to represent Plaintiff on 29 July 2014.  Plaintiff contends that her former counsel between 2010 and 2014 did a poor job retaining the necessary expert witnesses to testify in this construction defect case.

In opposition, the defendants argue that Plaintiff has not met the requirements under the Code of Civil Procedure for augmenting her expert witness list.  The defendants argue that Plaintiff has not justified the late request to augment given that this is an old case and trial is set in January.  The defendants contend that they will suffer extreme prejudice if Plaintiff’s motion is granted.

The Court finds that Plaintiff has not satisfied the requirements of the Code of Civil Procedure for augmenting her expert witness list.  The original expert witness disclosure was served in March.  The defendants have relied on that expert witness disclosure in preparing for trial, which is scheduled for January.  If Plaintiff’s motion is granted, depositions of the new experts would need to be taken, which could result in additional discovery that would be needed by the defendants.   The defendants would be prejudiced by the time and expense that would be necessary for the additional discovery.  Given the upcoming trial date, it is likely that the trial would need to be moved.

More importantly, Plaintiff has not shown that she would not in the exercise of reasonable diligence have determined to call the new expert witnesses.  Plaintiff also fails to show, or even argue, that her failure to designate the new expert witnesses was a result of mistake, inadvertence, surprise, or excusable neglect.  Plaintiff’s only argument is that these expert witnesses are necessary and her previous counsel did a poor job retaining the necessary expert witnesses.  This is an insufficient showing to satisfy the required conditions to augment the expert witness list.  Accordingly, Plaintiff’s motion for an order permitting Plaintiff to augment and/or supplement her expert witness list/disclosure is DENIED.

With regard to Plaintiff’s motion for an order directing Kenneth Tersini to answer deposition questions, Plaintiff’s request is premature.  Plaintiff has not served any deposition notice or subpoena on Tersini.  Plaintiff appears to have made this motion in anticipation that Tersini will refuse to appear or answer questions in response to a future deposition notice or subpoena.  Plaintiff does not provide authority supporting such an anticipatory motion.  Accordingly, Plaintiff’s motion for an order directing Kenneth Tersini to answer deposition questions is DENIED.

1. Conclusion and Order

Plaintiff’s motion is DENIED in its entirety.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara