Monday, March 7, 2016

Designate or Die

Perry v. Bakewell Hawthorne, LLC, No B264027 (D2d2 Feb. 3, 2016).

In opposition to one Defendant's motion for summary judgment in a premises liability case, Plaintiff submitted some expert declarations on the standard of care. Problem is that another Defendant had previously served a timely demand for exchange of expert information under Code of Civil Procedure § 2034.210 on all parties, but Plaintiff didn’t timely designate any experts. Which led the trial court to exclude them under § 2034.300, resulting in the SJ motion being granted.

The Court of Appeal rejects two arguments that the exclusion of the experts was error. First, the fact that the demand was served by a different defendant was of no moment. As the current version of § 2034.210 makes clear, once any party serves a demand, all parties have an obligation to exchange expert information, regardless of who made the demand. 

Second, the court rejects the argument that § 2034.300 does not merit the exclusion of expert testimony submitted in connection with summary judgment, as opposed to trial. Although, most of the time the designation date will fall after summary judgment has been briefed, that does not mean that § 2034.300’s rule of exclusion does not apply in those instances where the designation date comes first. Section § 2034.300 is generally addressed in terms of exclusion of expert evidence, not just at trial.


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