Exclusion of expert testimony is an evidentiary sanction pursuant to Section 2034.300 of the Code of Civ. Proc. The sanction is warranted only on a finding of an unreasonable failure to do any of the following:
Code of Civ. Proc., § 2034.300.
A formal objection to the opposing expert testimony is required. The objection can be made by motion in limine or can be raised when the expert takes the stand. Richaud v. Jennings (1993) 16 Cal.App.4th 81, 91.
Although Code of Civ. Proc., § 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 Cal.App.4th 1437, 1447. A party’s failure to comply with expert designation rules may be found to be unreasonable “when a party’s conduct gives the appearance of gamesmanship, such as undue rigidity in responding to expert scheduling issues.” Staub v. Kiley (2014) 226 Cal.App.4th 1437, 1447.
A party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony, if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult. Easterby v. Clark (2009) 171 Cal. App. 4th 781; Jones v. Moore (2000) 80 Cal.App.4th 557; Kennemur v. State of California (1982) 133 Cal.App.3d 907; Bonds v. Roy (1999) 20 Cal.4th 140. Furthermore, with respect to “issues that both sides anticipate will be disputed at trial, a party cannot merely ‘reserve its right‘ to designate experts in the initial exchange, wait to see what experts are designated by the opposition, and then name its experts only as purported ‘rebuttal’ witnesses.” Fairfax v. Lords (2006) 138 Cal.App.4th 1019, 1021.
All parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by serving the information on the other party by any method specified in Section 1011 or 1013, on or before the date of exchange. Code of Civ. Proc., § 2034.260(a).
An expert designation must include “[a] list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial.” Code of Civ. Proc., § 2034.260(b)(1). “If a witness on the list is an expert as described in subdivision (b) of Section 2034.210, the exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert, or by that party if that party has no attorney. This declaration shall be under penalty of perjury and shall contain all of the following:
Code of Civ. Proc., § 2034.260(c).
“[T]he statutory scheme as a whole envisions timely disclosure of the general substance of an expert's expected testimony so that the parties may properly prepare for trial. Allowing new and unexpected testimony for the first time at trial so long as a party has submitted any expert witness declaration whatsoever is inconsistent with this purpose. We therefore conclude that the exclusion sanction of subdivision (j) applies when a party unreasonably fails to submit an expert witness declaration that fully complies with the content requirements of subdivision (f)(2), including the requirement that the declaration contain '[a] brief narrative statement of the general substance of the testimony that the expert is expected to give.' (Subd. (f)(2)(B).) This encompasses situations, like the present one, in which a party has submitted an expert witness declaration, but the narrative statement fails to disclose the general substance of the testimony the party later wishes to elicit from the expert at trial. To expand the scope of an expert’s testimony beyond what is stated in the declaration, a party must successfully move for leave to amend the declaration under subdivision (k).” Bonds v. Roy (1999) 20 Cal. 4th 140, 148-149.
“[U]nder Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is
Sargon Enterprises, Inc. v. Univ. of S. Cal. (2012) 55 Cal.4th 747, 771–772.
“[C]ourts must also be cautious in excluding expert testimony. The trial court's gatekeeping role does not involve choosing between competing expert opinions. The high court warned that the gatekeeper’s focus ‘must be solely on principles and methodology, not on the conclusions that they generate.’” Id. at 772. The court has the inherent power exercisable in its discretion, to exclude expert witness testimony “for an egregious violation” of those requirements. Cottini v. Enloe Med. Ctr. (2014) 226 Cal.App.4th 401, 428-29. However, under the Code of Civil Procedure section 2034.300, if the moving party makes the required showing, relief is mandatory. Under the court’s inherent authority, relief is within the court’s discretion. Id. at 425-26.
...1362.) During the comment period on the proposal, OEHHA received numerous comment letters opposed to lowering the PHG, and OEHHA ultimately agreed to submit the proposal to three outside scientific experts for peer review. (See AR 2216-17.) 2622. (AR 2616-2786.) Like the first draft, the second draft was prepared by Steinmaus. (AR 2617.) In February 2015, OEHHA adopted 1 ppb as the PHG for p...
...is “very limited” “out of deference to the separation of powers between the Legislature and the judiciary, to the legislative delegation of administrative authority to the agency, and to the presumed expertise of the agency within its scope of authority.” (Shapell Industries, Inc. v. Governing Board (1992) 1 Cal.App.4th 218, 230; see also Khan, supra, 187 Cal.App.4th at 106 [such cases “are accorded the ...
Feb 21, 2020
[TENTATIVE] ORDER RE: DEEFENDANT HONG HOLDINGS LLC’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION On March 15, 2017, Plaintiff Maria Parra Sarinana (“Plaintiff”) filed this action against Defendant Hong Holdings LLC (“Defendant”) for premises liability and ne...
...February 14, 2019. On January 17, 2019, Plaintiff filed a motion for leave to amend the complaint, to be heard on February 14. On February 14, the Court granted the motion for leave to amend and took the motion for summary judgment off calendar. The Court ordered that Plaintiff was to file the amended complaint within five days. Plaintiff never did that, although the parties have been litigating over the las...
Feb 20, 2020
Motion No. 1: Defendant’s (Orange County Global Medical Center) Motion for Leave to Augment Defendant’s Designation of Expert Witnesses (Motion), filed on February 7, 2020 under ROA No. 208, is GRANTED. Code of Civil Procedure section 2034.610 states in part, “(a) On motion of any party who has engaged in a timely exchange of expert witness i...
...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 follow...
Feb 18, 2020
(1) Motion for Summary Judgment and/or SAI (2) Motion for Summary Judgment and/or SAI (3) Motion for Leave to Amend Responses to RFAs Tentative Ruling: (1) Motion for Summary Adjudication by Plaintiff Tirso Gamo is DENIED. Plaintiff moves for summary adjudication of discrete issues concerning Welfare and Institutions Code section 15657.6 and application of the ...
...Welfare and Institutions Code section 15657.6, the operative Third Amended Complaint does not allege a violation of such section. Defendants to give notice. (2) Motion for Summary Judgment or alternatively, Motion for Summary Adjudication by Defendants, J Star Auto Group, Inc. dba Maserati of Anaheim Hills and Jared Merell is CONTINUED to ______ 2020, Dept. C11, at 2 pm. Defendants move for summary judgment or ...
Feb 18, 2020
...medical expert testimony to oppose the summary judgment motion. The Court heard and granted Plaintiff’s request for a continuance on September 20, 2019, setting the new date for the hearing on the instant motion for February 14, 2020. To date, no opposition has been filed. RELIEF REQUESTED: Defendants move for judgment on the sole remaining cause of action on the grounds that: (1) Defendants complied with t...
...Defendants have failed to provide a prima facie showing that they met the standard of care. As stated by the Supreme Court of California: Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trie...
Feb 14, 2020
...judgment or alternatively, summary adjudication of claims. In support of their motion, they submit declarations by Thomas G. Sampson, M.D., an independent medical expert who is qualified to provide opinion testimony about the orthopedist's standard of care and causation. (SUMF, No. 51.) He opines that the slippage of the implant occurred within the first few months after surgery. (Sampson Declaration, 17:19-22.) ...
...explanation of the grounds for expert opinion in an opposing expert's declaration “need not be as detailed or extensive as that required in expert testimony presented in support of a summary judgment motion.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 187-89.) Even so, the opposing party's burden of production is not satisfied by declarations containing inadmissible evidence (hears...
Feb 14, 2020
...Rangel Cruz for Petitioner [“Kerri”] Daniel A. Murphy for Respondent [“Barry”] Ruling: 1. For all the reasons set out below, the Court orders Barry to pay Kerri’s attorney $25,000 for attorney fees and expert witness costs subject to re-allocation at trial; said sum to be paid no later than February 28, 2020. Kerri’s request to be permitted to seek additional fees and costs is reserved to her. 2. The req...
...Barry; that she received assets equal to what he received in the dissolution settlement; that he has “evened the playing field” by his overpayment of guideline support for the past year; that her fee motion must be denied. Kerri’s Reply On 2/5/20 Kerri filed her verified 54-page Reply; the Court summarizes here; she reports that Barry opposes her request for attorney’s fees and repeats his earlier plea...
Feb 11, 2020
HEARING ON MOTION TO COMPEL ARBITRATION AND STAY ACTION FILED BY MERITAGE HOMES OF CALIFORNIA INC. * TENTATIVE RULING: * Plaintiffs are homeowners who purchased single family residences in the Copper Ridge community...
...Antioch. Meritage moves to compel arbitration of the claims and to stay the action pending arbitration, and Plaintiffs oppose the motion. For the reasons set forth, the motion is GRANTED. Summary of the Motion and Opposition Plaintiffs are either original purchasers or subsequent purchasers of single family residences built by Meritage at the Copper Ridge Development. The Original Purchaser Plaintiffs purc...
Feb 6, 2020
TENTATIVE RULINGS ON PLAINTIFF’S IN LIMINE MOTIONS Plaintiff’s No. 2 – Motion To exclude Evidence of Gambling or Tax Returns Allow use of tax returns redacted to exclude all evidence of income other than plaintiff’s earnings from driving. Other income sources are not relevant. Mention of...
...gambling is irrelevant and prejudicial. Plaintiff’s No. 4 – Motion to exclude Expert Opinion of Fatzinger Hearing required. No Opposition was filed. RULINGS ON DEFENDANTS’ IN LIMINE MOTIONS No. 3 – Exclude Traffic Collision Report Conclusions of Liability and Witness Statements Grant as to any conclusions of liability stated in report. Witness statement may be used to impeach testimony of witnesses at ...
Feb 4, 2020
Ayad alanizi, Plaintiff, v. akira ishiyama, m.d., et al., Defendants. Case No.: 18STCV05137 Hearing Date: February 4, 2020 [TENTATIVE] order RE: MOTION FOR SUMMARY JUDGMENT, or, in the alternative, summary adjudication Background Plaintiff Ayad Alazizi (“Plaintiff”) filed this medical malpractice action against Defendant Regents of the University o...
...that its doctors complied with the standard of care or, in the alternative, nothing Defendants’ doctors did, or failed to do, caused or contributed to the injuries in this case. Plaintiff opposes the motion, which is granted. LEGAL STANDARD “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a mat...
Feb 4, 2020
The motion for summary judgment or in the alternative summary adjudication filed by defendants The Irvine Company Apartment Communities, Inc., Newport Bluffs, LLC, and The Irvine Company, LLC (together, “Defenda...
...sitting as the trier of fact …. [I]f the court concludes that the plaintiff's evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendants’ motion.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856; see also Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1342 fn. 6.) “[S]ummary judgment is ...
Feb 1, 2020
...inform the Court what the requisite standard of care is under the facts of this case. As stated by the Supreme Court of California: Evidence Code section 801 provides: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trie...
...assist the trier of fact; and (b) Based on matter ... that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (Italics added.) Subdivision (b) clearly permits a court to determine whether the matter is of a type on which an expert may rea...
Jan 31, 2020
TENTATIVE RULING Calendar: 22 Case Number: EC 067734 Date: 1/31/20 Trial date: March 16, 2020 Case Name: Elly, et al. v. State Farm Insurance Companies, et al. MOTION FOR SUMMARY JUDGMENT (OR, in the Alternative, Summary Adjudication) [CCP § 437c; CRC 3.1350 et seq.] Moving Party: Defendant State Farm Insurance Company Responding Party: Plaintiffs Charles T. El...
...defendant in response to the handling of the claim, but State Farm has failed and refused to tender its performance due under the policy, but has denied plaintiffs’ claim explaining that their policy excludes damages caused by tree roots, wear, tear, deterioration and faulty construction. On March 22, 2017, plaintiffs received notice from the City of Glendale that the collapsed wall was a violation of the...
Jan 31, 2020
...BY KBA DOCUMENT SOLUTIONS LLC * TENTATIVE RULING: * Plaintiff KBA Document Solutions, LLC (KBA) moves for a preliminary injunction against defendants Costa, Kim, and Global Office, Inc. (Global). The motion is denied. Kim and Costa were formerly key sales employees of a company called KBA Docusys, in the business of selling or leasing copy and printing equipment and supplies to business customers. KBA D...
...detailed effort to prove it so. The proposition, however, is far from self-evident. As defendants point out, pretty much every business office needs a copier and a printer. And there is no great secrecy or expertise in figuring out which businesses are likely to need them in high volumes – big businesses (such as Peet’s Coffee), law offices (such as Jackson Hertogs), and so on. The information available to Ki...
Jan 31, 2020
...the motion and filed written objections to portions of the evidence submitted by Dignity. Dignity responded with a reply, additional evidence, and “objections” to Plaintiff’s objections. Although the motion was originally set to be heard on December 5, 2019, the Court continued the hearing to afford Plaintiff an opportunity to respond to Dignity’s additional evidence. Plaintiff responded with objections ...
...a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) III. Objections to Evidence Plaintiff objects to portions of the declarations of Dignity’s risk manager, Mary Ann Save, R.N., and its medical expert, Veronica Siewert, R.N. Dignity filed “objections” to these objections. Dignity’s filing consists, in part, of responses to some of Plaintiff’s objections; these responses have been considered in eval...
Jan 30, 2020
MOTION FOR AN INDEPENDENT MENTAL EXAMINATION OF PLAINTIFFS IS GRANTED. Background Plaintiffs Cesar Romero (“Cesar”) and Tatiana Romero sued Defendants First American Title Insurance Company (hereinafter “F...
...OVERRULED. Defendant submits objections to the Declarations of Cesar Romero and Tatiana Romero and the letter from Philip Corrado, Ph.D. The objections are immaterial to the Court’s disposition of the motion. The Court therefore declines to rule upon them. Discussion Procedural Requirements The motion must specify the time, place, manner, conditions, scope, and nature of the examination. (Code Civ. Pro...
Jan 30, 2020
MOTION FOR AN INDEPENDENT MENTAL EXAMINATION OF PLAINTIFFS IS GRANTED. Background Plaintiffs Cesar Romero (“Cesar”) and Tatiana Romero sued Defendants First American Title Insurance Company (hereinafter “F...
...OVERRULED. Defendant submits objections to the Declarations of Cesar Romero and Tatiana Romero and the letter from Philip Corrado, Ph.D. The objections are immaterial to the Court’s disposition of the motion. The Court therefore declines to rule upon them. Discussion Procedural Requirements The motion must specify the time, place, manner, conditions, scope, and nature of the examination. (Code Civ. Pro...
Jan 30, 2020
MOTION FOR AN INDEPENDENT MENTAL EXAMINATION OF PLAINTIFFS IS GRANTED. Background Plaintiffs Cesar Romero (“Cesar”) and Tatiana Romero sued Defendants First American Title Insurance Company (hereinafter “F...
...OVERRULED. Defendant submits objections to the Declarations of Cesar Romero and Tatiana Romero and the letter from Philip Corrado, Ph.D. The objections are immaterial to the Court’s disposition of the motion. The Court therefore declines to rule upon them. Discussion Procedural Requirements The motion must specify the time, place, manner, conditions, scope, and nature of the examination. (Code Civ. Pro...
Jan 30, 2020
...predicated on her status as a child support judgment creditor with senior lien priority. Plaintiff also filed motion in limine number one to exclude expert witness testimony offered by Defendant. Plaintiff’s motion in limine number one is made on the grounds that: (1) Defendant demanded a mutual and simultaneous exchange of expert information, received expert witness information from Plaintiff and other parties ...
...equitable claims and defenses. PLAINTIFF’S MOTION IN LIMINE NUMBER ONE As indicated above, Plaintiff filed motion in limine number one to exclude expert witness testimony offered by Defendant. Plaintiff’s motion in limine number one is made on the grounds that: (1) Defendant demanded a mutual and simultaneous exchange of expert information, received expert witness information from Plaintiff and other parties ...
Jan 29, 2020
The Court rules as follows on the motion of Plaintiff John Doe to consolidate related cases, specifically, to consolidate the instant action with John Doe D.O. v. Anaheim Union High School District, OCSC Case No. 2018-01005840 – Facts/Overvi...
...student. Both defendants have answered. On 1/10/19, the Court granted defendant District’s motion for summary adjudication as to the 3rd C/A for sexual harassment. On 3/13/19, the Court denied plaintiff’s motion for leave to file an amended complaint, to substitute as defendant The David M. Bruce Family Trust, by and through the Trustee and decedent’s personal representative and/or successor in interest, Will...
Jan 29, 2020
Donald McPherson, et al. v. City of Manhattan Beach, et al., BS174550 Tentative decision on: (1) motion to augment the record: granted; (2) petition for writ of mandate: granted in part Petitioners Donald McPherson (“McPherson”) and Coastal Defender petition the court for a writ of mandate to compel Re...
...expanded use. The Planning Commission held a public hearing on January 24 and February 28, 2018. and then deliberated on March 14, 2018 to consider expanded use at the Club. The Planning Commission heard testimony from numerous individuals, as well as froth the Police and Fire Departments. The Planning Commission acknowledged that the Club was not in compliance with Manhattan Beach Municipal Code (“MBMC”) noise...
Jan 28, 2020
...of Cristina Sarabia MOVING PARTIES: Plaintiff, Patricia Bilgin OPPOSING PARTY: Defendant, City of Los Angeles PROOF OF SERVICE: OK OPPOSITION: January 14, 2020 REPLY: N/A TENTATIVE: Plaintiff’s motion to compel the deposition of Cristina Sarabia is GRANTED. The parties are ordered to meet and confer to schedule the deposition for a date after February 5, 2020, but by no later than March 30, 2020. C...
...violation of Labor Code section 1102.5, (8) invasion of privacy, and (9) intentional infliction of emotional distress. Plaintiff now moves to compel the deposition of Cristina Sarabia. City opposes the motion. “If, after service of a deposition notice, a party to the action … without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produ...
Jan 28, 2020
...Rubin (Judge Sterne) Case No. 16CV03591 Hearing Date: January 27, 2020 HEARING: (1) Demurrer of Cross-Defendants A. Stuart Rubin and Annette Rubin to Cross-Complaint of Construction Plumbing (2) Motion of Cross-Defendant Construction Plumbing ATTORNEYS: For Plaintiff McCoy Electric Corporation: Barton C. Merrill For Defendants, Cross-Complainants, and Cross-Defendants A. Stuart Rubin and Annett...
...cross-complaint of The Las Canoas Co. dba Construction Plumbing is overruled in its entirety. Cross-defendants shall file and serve their answer to the cross-complaint on or before February 11, 2020. (2) The motion of cross-defendant The Las Canoas Co. dba Construction Plumbing to compel further responses to discovery is granted. On or before February 11, 2020, cross-complainants A. Stuart Rubin and Annette Rubi...
Jan 27, 2020
...non-retained expert. However, there is no declaration supporting the assertion so it cannot be considered by the court. There is no suggestion of any agreement to an extension between SH Tax and JTH and the motion is untimely. Further, the motion is procedurally inappropriate because it is brought as a single motion seeking to compel compliance with four separate subpoenas, two of which are directed to Steve Ha...
...the requested sanctions of $3,065. V. TICOR’S MOTION FOR PROTECTIVE ORDER Defendant Ticor Title Company of California moves to exclude, Susan Hufford, who was designated by plaintiff in its supplemental expert designation. Ticor argues that Hufford was improperly designated as a supplemental expert in violation of CCP § 2034.280 because she was designated to give opinions on the same issues as Steve Littlef...
Jan 24, 2020
...performed in a reasonable manner.” (Motion 3:11-12) Objection Nos. 1, 2 are: OVERRULED. Mr. Groussman establishes qualification as an expert witness. Although a curriculum vitae is usually attached to expert declarations, there is no requirement that it must be attached to establish qualification. Objection Nos. 10, 12, 13 is OVERRULED. Objection Nos. 3-9, 11-12 are SUSTAINED. Mr. Groussman relies on ev...
...summary judgment because Defendant’s evidence lacks authentication, foundation, and violates the hearsay rule. Because Defendant’s expert, Jon Groussman, relies on that evidence to make his opinions, his testimony (see, e.g., DSS #3) is inadmissible. A writing must be authenticated by declarations or other evidence establishing that the writing is what it purports to be. (Evid. Code, §§ 250, 1401(a).) Declara...
Jan 23, 2020
