SJ Experts Must Be Disclosed by Statutory Deadline

Perry v. Bakewell Hawthorne, LLC, No. S233096 (Cal. Feb. 23, 2017)

Based on the statutory deadlines, California’s somewhat unique method of expert discovery—a mutual exchange of expert information—ordinarily happens after summary judgment briefing is completed. Prior cases have thus held that when the expert exchange deadlines haven’t run, the failure to pre-disclose an expert whose testimony is used in connection with a summary judgment motion does not merit preclusion under Code of Civil Procedure § 2034.300, which applies to undisclosed trial experts.

What happens, however, when the circumstances of the schedule wind up with the expert exchange date occurring before summary judgment? Some older cases held that the disclosure deadline applied only to trial experts, so the failure to exchange information didn’t preclude an expert’s use on summary judgment, even if the exchange date had passed. But the Supreme Court, in an unanimous opinion by Justice Corrigan, disagrees and disapproves those cases in a pretty straightforward analysis. 

Section 437c(d) says that summary judgment affidavits must “set forth admissible evidence.” And § 2034.300 says that the testimony of expert witnesses whose information has not been exchanged as of the exchange date is inadmissible. So unless the party offering the testimony SJ can show one of the exceptions to § 2034.300—such as good cause for a tardy disclosure, see § 2034.710—the undisclosed expert’s testimony is inadmissible and can’t be used at summary judgment.

Court of Appeal affirmed.

Not Dead Yet ...

S. Cal. Sunbelt Developers v. Banyan Ltd. P'ship, No. G051260 (D4d3 Feb. 16, 2017)

This dispute over a joint venture has been going on for twenty years. A receiver was ultimately appointed to wind the thing down. At the bitter end, one question remained: Who pays?

Our Yemen of Libel Tourism ...

Argentieri v. Zuckerberg, No. A147932 (D1d5 Feb. 15, 2017)

If you want to sue someone for defamation and you have a choice of forum between California and pretty much anywhere else, California is almost always a bad move, even taking the weather into account. Often the worst. Some of us like it that way.

This Just Seems Wrong

Doe v. California, No. D069411 (D4d1 Feb. 15, 2017)

I had thought that recent Wayans anti-SLAPP decision was pretty bad, but this one is awful. 

There's No Intra-Case Res Judicata

Samara v. Matar, No. B2657525 (D2d7 Feb. 15, 2017)

P brings a dental malpractice claim against Dentist and against Dentist’s Employer. Employer was sued both on a respondeat superior theory and for negligently retaining Dentist, who supposedly had some licensing issues. Dentist wins SJ on the alternative grounds of the statute of limitations and lack of causation. The court of appeal affirms on the SOL, but expressly doesn’t reach causation. On remand, Employer moves for SJ, arguing that the prior no-causation ruling is preclusive in a way that prevents vicarious liability based on Dentist’s conduct. Trial court grants the motion.

There’s a bunch of case law that says that non-mutual collateral estoppel can’t apply to an adverse finding that is appealed, but which the appellate court expressly declines to reach. The trial court here, however, tried to sidestep those cases by claiming that the issue here was res judicata, not collateral estoppel. (Viz., claim, not issue, preclusion). But the preclusive power of res judicata applies only to separate lawsuits. As the judgment against Dentist was entered within the same case, res judicata doesn’t apply. 

Which means if there’s going to be preclusion, it will have to come from collateral estoppel. But collateral estoppel only applies to issues that are actually decided. And the cases are pretty clear that an issue isn’t “actually decided” when it’s appealed but the appellate court expressly declines to reach it. 

Reversed.

Everybody Deserves a Little Delay

Hamilton v. Orange Cnty. Sheriff’s Dept., No. G051773 (D4d2 Feb. 14, 2017)

Defendant in this case filed a summary judgment motion that would have been timely consistent with the original trial date. But the first hearing it could get was four days after trial was set to start. The court subsequently granted an ex parte to move the trial date back so that the SJ hearing date would be more than thirty days before trial.

Plaintiff noticed up the depositions of the SJ declarants plus a PMQ about six weeks before the SJ opposition was due. Defendant objected and then failed to get back to Plaintiff about dates for the depos for over a month. Just before the SJ opp was due, in lieu of setting the depos immediately, Defendant agreed to stipulate to put off the trial and the SJ hearing for another two months to allow time for the depos to go forward. With approval on the stipulation pending, Plaintiff didn’t file an SJ opposition on the due date. The court then denied the stipulation because of a lack of diligence, and proceeded to grant the unopposed MSJ and enter judgment for Defendant. The court subsequently denied a Code of Civil Procedure § 437(b) motion to set the judgment aside.

When a party is faced with an MSJ and still needs evidence to oppose it, the standard relief is to file a declaration under § 437c(h), laying out what discovery is needed and why more time to get it is merited. But that doesn’t preclude the party from taking the alternate route of seeking a continuance of the hearing, which like any continuance, can be granted on good cause in the sound discretion of the trial court.

Even if § 437c(h) wasn’t met here, the stipulation showed good cause to continue the hearing. Defendant had shined plaintiff on about setting dates for the depos, which had been timely noticed in time to meet the original schedule. Indeed, Defendant had essentially conceded that its scheduling cooperation was less than exemplary when it agreed to the stipulated continuance. So particularly given that the trial court had already continued the case to accommodate Defendant’s inability to get a timely summary judgment hearing, it was unfair and an abuse of discretion for the trial court to deny the stipulated continuance to give Plaintiff time to take the depos needed to oppose.

Reversed.

Mockery of Private People Is Not of Public Interest

Daniel v. Wayons, No. B261814 (D2d1 Feb. 9, 2017)

Just when we were starting to have a run of good anti-SLAPP decisions . . .