Legal Standard

Any party may demand a mutual and simultaneous exchange by all parties of a list containing the name and address of any person whose oral or deposition testimony in the form of an expert opinion any party expects to offer in evidence at the trial. (Code Civ. Proc., § 2034.710(a).)

“On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” (Code Civ. Proc., § 2034.710(a).)

The motion must be made a sufficient time in advance to permit the deposition of any expert to whom the motion relates to, and the motion must be accompanied by a meet and confer declaration under Code of Civil Procedure Section 2016.040. (Code of Civ. Proc. § 2034.710(b)-(c).)

Under exceptional circumstances, the court may permit the motion to be made at a later time. (Code Civ. Proc., § 2034.610(b).) The motion shall be accompanied by a meet and confer declaration. (Code Civ. Proc., § 2034.610(c).)

The court shall grant leave to submit tardy expert witness information 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 absence of a 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 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, and
2. sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect; and
4. the order is conditioned on the moving party making the expert available immediately for a deposition, 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.

(Code Civ. Proc., § 2034.720; see Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 343, 3653 [finding that attorney’s miscalendaring the time of designation was a result of error and excusable neglect]; Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 137 disapproved on other grounds by Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31 [stating that an honest mistake of law is a valid ground for relief based on mistake, inadvertence, surprise of excusable neglect].)

Sanctions

CCP section 2034.730 provides that “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to submit tardy expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2034.730.)

CCP sections 2023.010 and 2023.030 allow the court to impose monetary sanctions for the misuse of discovery, which includes the “[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.” (Code Civ. Proc., §§ 2023.010(h), 2023.030.)