Case Number:?VC064688????Hearing Date:?February 06, 2018????Dept:?SEC
YOUSSEF v. 5D BUILDING SYSTEMS, INC.
CASE NO.:??VC064688
HEARING:??02/06/18
JUDGE????????LORI ANN FOURNIER
#3
TENTATIVE ORDER
Plaintiff?s Motion for Leave to Augment or Amend Expert Witness List or Declaration is?GRANTED.?CCP ? 2034.620
Moving Party to give Notice.
?(b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit.?Under exceptional circumstances, the court may permit the motion to be made at a later time.? (emphasis added).?(CCP ? 2034.610(b).)
Here, the Court finds that exceptional circumstances exist to warrant Plaintiff?s untimely filing of the instant motion? specifically, Plaintiff?s former counsel?s unforeseeable withdrawal from this action.
?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. (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 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: (A) Sought leave to augment or 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 described in Section 2034.260 on all other parties who have appeared in the action.?(d) 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.? (CCP ? 2034.620.)
The Court has reviewed Plaintiff?s Motion and Defendant?s Opposition thereto. The Court, on the conditions set forth below, grants Plaintiff?s Motion to Augment his Expert Witness List by adding Mr. Jon M. Riddle to his list of experts. The Court makes this determination on the grounds that Plaintiff has met the moving party?s burdens set forth in CCP ?2034.620, and in light of Plaintiff?s counsel?s untimely and unexpected withdrawal from this case.
The conditions are as follows: (1) Plaintiff must make Mr. Riddle available for deposition on or before February 13, 2018 (including Saturdays and Sundays); (2) at Defendants? option, none of the Defendants? experts will be deposed by the Plaintiff for a period of five days after the completion of Mr. Riddle?s deposition in order to give them sufficient time to prepare for Mr. Riddle?s testimony.; and (3) Plaintiff must permit Defendants leave to designate additional counter-experts on their own or to elicit additional opinions from any experts that they previously designated..