Administrative Record

California Rules of Court, Rule 3.2225(c) provides:

Unless otherwise ordered by the court:

1. Any request to augment or otherwise change the contents of the administrative record must be made by motion served and filed no later than the filing of that party's initial brief.
2. Any opposition or other response to the motion must be served and filed within 10 days after the motion is filed.
3. Any motion regarding the record will be heard at the time of the hearing on the merits of the petition unless the court orders otherwise.

Evidentiary Record – Analogous Motions

A motion to augment the evidentiary record may be more accurately be argued as a motion to re-open the case-in-chief under Code of Civil Procedure § 607(6) or through the court's inherent authority to control the order of proof under Evidence Code § 320 and Code of Civil Procedure § 128. So long as judgment has not been entered, trial courts have broad discretion to allow additional evidence (Evidence Code § 320, Code Civ. Proc. § 128(a)(3); Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal.App.3d 1035, 1052, fn. 7; Howard Contracting, Inc. v. G. A. MacDonald Const. Co. (1998) 71 Cal.App.4th 38, 59; Horning v. Shilberg (2005) 130 Cal.App.4th 197, 208.) "Such a procedure . . . does not violate the litigants' rights when adequate notice is given, as here – and may, in fact, be required in order to reach a just result." (Howard Contracting, supra at 59 (citing Coit Drapery Cleaners, Inc. v. Sequoia Ins. Co. (1993) 14 Cal.App.4th 1595, 1611-1612.) In Rosenfeld, Meyer & Susman v. Cohen, a party moved to reopen its case to offer additional evidence after the court announced its tentative decision in a nonjury trial. The appellate court wrote: "Trial courts have broad discretion in deciding whether to reopen the evidence" (Rosenfeld, Meyer & Susman, supra at 1052.)

Expert Witnesses

Court Discretion

Code of Civil Procedure § 2034.610 grants the court discretion to grant leave to augment an expert witness designation on motion of any party who has engaged in a timely exchange of expert witness information.

Requirements

Code of Civil Procedure § 2034.620 sets forth the requirements for allowing leave to augment or amend. The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

1. The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.
2. 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.
3. 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:
1. Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.
2. 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.
4. 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.

Supplemental Expert Witnesses

“(a) Within 20 days after the exchange described in Section 2034.260, any party who engaged in the exchange may submit a supplemental expert witness list containing the name and address of any experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange, if the party supplementing an expert witness list has not previously retained an expert to testify on that subject.” (Code Civ. Proc. § 2034.280(a).) While it is true “…a party who has designated an expert to testify on a particular subject may not use a supplemental list to substitute experts.” (Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723.), Code of Civil Procedure § 2034.280(a) does not always apply given the particular set of circumstances.

Death of an Expert Witness

Augmentation of the expert witness designation has been allowed where the expert passed away before trial, as well as where the expert’s conclusions and deposition testimony were found to be unexpectedly detrimental to the party offering the expert. (Richaud v. Jennings (1993) 16 Cal.App.4th 81, 89; Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1478.)

Failure to Designate an Expert Witness

"The decision to grant relief from the failure to designate an expert witness is addressed to the sound discretion of the trial court and will not be disturbed on appeal absent a showing of manifest abuse of that discretion." (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.)

Statute of Limitations

There is no express number of days stated as a time limitation for bringing a motion for leave to augment the expert witness list and there is no prohibition against designating another expert witness by court ordered augmentation who will testify on a subject that another expert has already been designated to testify about.

Untimely Augmentation or Improperly Excluded Evidence

Code of Civil Procedure § 1094.5(e) provides: “Where the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment as provided in subdivision (f) remanding the case to be reconsidered in the light of that evidence;  or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.”