DuVal v. Hellman
Filed 5/7/07 DuVal v. Hellman CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
KAREN DuVAL, Plaintiff and Appellant, v. JOY ALICE HELLMAN, Defendant and Respondent. | C052317 (Super. Ct. No. 133159) |
Plaintiff Karen DuVal appeals from a judgment of nonsuit (Code Civ. Proc., 581c)[1]in favor of defendant Joy Alice Hellman in the trial of plaintiffs personal injury action. Plaintiff contends the trial court erred in (1) denying her motion to submit tardy expert witness information and (2) affirming that decision after granting her motion to reconsider it. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and defendant were involved in a car accident. Plaintiff sued defendant for injuries plaintiff sustained as a result of the accident. The trial was originally set for August 1, 2005.
On May 19, 2005, defendant served plaintiff with a demand for exchange of expert witness information, designating June 13, 2005, as the date of exchange. Defendant timely served her expert witness designation. Plaintiff did not. Instead, plaintiff faxed defendant a letter, stating she had not retained any experts and identified two potential experts.
On June 27, 2005, plaintiff advised defendant that she had retained the experts identified in her June 13, 2005, letter and would be filing a motion for leave to submit tardy expert witness information. Plaintiff asked defendant not to oppose the motion, and defendant responded that she would not stipulate to [plaintiffs] tardy disclosure of expert witnesses.
On June 29, 2005, plaintiff filed an ex parte application for an order shortening time for a hearing on her motion for leave to submit tardy expert witness information. The trial court granted the application and set a hearing date of July 15, 2005. In his declaration filed in support of plaintiffs motion for leave to submit tardy expert witness information, plaintiffs counsel explained that he did not consult with or retain any potential expert witness until sometime after June 9, 2005, because he was of the opinion that, since liability was clear (the defendant rear ended plaintiffs vehicle that was stopped for a red traffic light) and plaintiffs injuries were not extensive, the employment of experts would make it more difficult to reach a settlement, because of the added expenditures that would be incurred and have to be recovered. It was not until mediation, which took place on June 9, 2005, that [he] became aware that the defendants insurance company was unwilling to make a reasonable settlement offer and it would be necessary to retain experts for trial.
On July 15, 2005, the trial court denied plaintiffs motion, finding plaintiff failed to satisfy the statutory requirements. In its written order, the court found plaintiff failed to demonstrate that the failure to timely disclose experts was the result of mistake, inadvertence, surprise, or excusable neglect.
On July 25, 2005, the August 1, 2005, trial date was vacated [d]ue to the unavailability of the court. The trial was later reset for January 23, 2006.
On August 5, 2005, plaintiff filed a motion for reconsideration of her motion for leave to submit tardy expert witness information based on changed facts and circumstances, namely the vacation of the August 1, 2005, trial date. ( 1008.) She claimed defendant can no longer claim that [defendant] would be prejudiced by the late disclosure, since there is now more than sufficient time to complete the depositions of plaintiffs experts. She also urged the trial court to exercise its inherent authority to reconsider its ruling.
On September 2, 2005, the trial court granted plaintiffs motion for reconsideration and upon reconsideration, the court reaffirm[ed] [its] prior decision denying the motion for the reasons originally stated. In its written order, the court again found plaintiff failed to demonstrate that the failure to timely disclose experts was the result of mistake, inadvertence, surprise, or excusable neglect.
On January 17, 2006, plaintiff filed a motion in limine for an order allowing her to call Jeffrey W. Grolig, M.D. as a witness and allowing Dr. Grolig to testify with regard to causation of her injuries. She argued that Dr. Grolig was her treating physician and, as such, could testify regarding causation notwithstanding her failure to disclose him as an expert. The motion was denied on January 20, 2006, leaving plaintiff without an expert witness to testify as to the cause of her injuries.[2]
On January 23, 2006, the parties stipulated that prior to jury selection, plaintiff would make an offer of proof to the court with special emphasis on the issue of medical causation, and defendant could, if she chose, move for nonsuit. As stipulated, plaintiff made an offer of proof, and defendant moved for nonsuit. The trial court granted the motion, finding that the evidence to be presented fails to support a prima fascia [sic] case of negligence as there will be no proof of causation of plaintiffs injuries.[3]
DISCUSSION
Plaintiff contends the trial court abused its discretion in denying her motion to submit tardy expert witness information. There is no merit to this claim.
A party who fails to exchange expert witness information on time may seek leave of court to submit tardy information. ( 2034.710.) The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied: [] . . . [] (c) 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. . . . ( 2034.720, italics added.) In determining whether the attorneys mistake or inadvertence was excusable, the court inquires whether a reasonably prudent person under the same or similar circumstances might have made the same error. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora), quoting Bettencourt v. Los Rios Community College Dist. (1986) 42 Cal.3d 270, 276, italics added by Zamora.)[4]
We review the trial courts ruling denying plaintiffs motion for leave to file tardy expert witness information for abuse of discretion. (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1476.)[5]
Here, plaintiffs counsel delayed in consulting with or retaining experts to keep costs down and thereby enhance the chances for settlement. While this strategy initially may have been reasonable, counsels failure to retain or consult with any experts until sometime after June 9, 2005 -- four days before the exchange date -- was not. Even assuming liability was clear, as plaintiff contends, there is no indication the parties had discussed, much less reached a consensus on, the cause of plaintiffs injuries or the extent of her damages. Under these circumstances, presuming the case would settle, as plaintiffs counsel apparently did, was manifestly unreasonable. Accordingly, the trial court did not abuse its discretion in denying plaintiffs motion to submit tardy expert witness information.
Plaintiff also contends [t]he trial court abused its discretion when it denied plaintiffs motion [for reconsideration] based on changed circumstances. We disagree.
Even assuming that the vacation of the August 1, 2005, trial date eliminated any prejudice defendant would otherwise suffer if plaintiff were permitted to submit tardy expert witness information, the trial court was still required to find that plaintiffs failure to submit the information was the result of mistake, inadvertence, surprise, or excusable neglect. ( 2034.720, subd. (c)(1).) Plaintiff presented no new facts in this regard. Accordingly, the trial court did not err in affirming its prior ruling.
DISPOSITION
The judgment is affirmed.
RAYE , J.
We concur:
BLEASE , Acting P.J.
MORRISON , J.
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[1] All further statutory references are to the Code of Civil Procedure.
[2] To the extent plaintiff claims the trial court erred in refusing to allow Dr. Grolig to testify as to the cause of her injuries, she is mistaken. (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35 [treating physicians who will testify as experts must be listed in the expert witness designation].)
[3] As the trial court correctly observed: In a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.)
[4]Zamora, supra, 28 Cal.4th at page 258 concerned a motion brought pursuant to section 473, which allows the trial court to relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. ( 473, subd. (b).) We find the standard for determining whether an attorneys mistake or inadvertence is excusable under section 473 equally applicable to motions for leave to file tardy expert witness information brought under sections 2034.710 and 2034.720.
[5] We reject plaintiffs assertion that the trial courts ruling should be reviewed de novo because it resulted in the grant of a nonsuit. In any event, were we to apply a de novo standard of review, the disposition would be the same.
