Du-All Safety, LLC v. Superior Court

246 Cal. Rptr. 3d 211, 34 Cal. App. 5th 485
CourtCalifornia Court of Appeal, 5th District
DecidedApril 18, 2019
DocketA155119
StatusPublished
Cited by5 cases

This text of 246 Cal. Rptr. 3d 211 (Du-All Safety, LLC v. Superior Court) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Du-All Safety, LLC v. Superior Court, 246 Cal. Rptr. 3d 211, 34 Cal. App. 5th 485 (Cal. Ct. App. 2019).

Opinion

Richman, J.

*488Defendant Du-All Safety, LLC (Du-All) timely filed its expert witness disclosure pursuant to the Code of Civil Procedure,1 identifying two experts it expected to call at trial. Plaintiffs' expert disclosure *489identified two experts to testify as to the same subjects as Du-All's experts, and also five more experts in other subjects. Du-All filed a supplemental disclosure identifying five experts in those fields. Plaintiffs moved to strike the supplemental disclosure and exclude the experts, and the trial court agreed in most part, ruling that four of the experts could not testify. Du-All filed a petition for a writ of mandate directing the superior court to vacate its order, arguing that the court abused its discretion in granting the motion. We agree with Du-All, and we grant the petition.

BACKGROUND

Proceedings in the Trial Court

On March 2, 2017, plaintiffs Mark Krein and his wife Lori Krein (when referred to collectively, plaintiffs) filed their first amended complaint, the operative complaint here (complaint). It named 12 defendants: Du-All; Alricks Steel, Inc.; Tuolumne County Engineering Consultants, Inc.; Darrhl I. Dentoni & Associates; Kjeldsen, Sinnock & Neudeck, Inc.; V.J. Gretzinger, P.E.; Eugene Weatherby, P.E.; Gretzinger & Weatherby; R.W. Siegfried & Associates; Siegfriend Engineering, Inc.; Schelin Associates, Inc.; and Robert D. Moore Construction Co., Inc.

The complaint was based on an accident in November 2015, when Mark Krein, an employee of Tuolumne Water District, fell from a bridge at his place of employment and "sustained paraplegic injuries." The *213thrust of the charging allegations were these:

- In 1974, defendant Robert D. Moore Construction Co. contracted to build a wastewater treatment plant for Tuolumne County Water District No. 2, which plant included two digester tanks that reduced the concentration of solids in wastewater. The construction contract required the construction and installation of a galvanized steel foot bridge (The Bridge) between the digester tanks pursuant to specifications, including longitudinal supporting beams of trusses. And "Defendants, and each of them, designed, approved, manufactured, and inspected The Bridge."

- In February 2002, Du-All contracted to periodically inspect the wastewater treatment plant, including The Bridge and its related equipment, and did not exercise reasonable care to identify any violations or hazardous conditions of The Bridge or recommend any corrective action for it, which omissions increased the risk of harm to Mark Krein, other employees of the Tuolumne Utilities District, and the public.

- In November 2015, Mark Krein (who had worked for the district since 2007) was walking on The Bridge when the floor gave way, and he fell *490"because The Bridge including its related equipment, component parts, and constituents were defectively designed, constructed, manufactured, and inspected. Neither the defendants nor The Bridge provided any notice or warning to plaintiff Mark Krein of any risk of personal injury."

The complaint alleged seven causes of action, only two of which included Du-All as a defendant: the first, for general negligence, and the seventh, for loss of consortium. The other five causes of action were product liability claims, all alleged against the other eleven defendants.

Many of the defendants filed answers to the complaint, including, as pertinent here, Du-All, whose answer was filed on March 17, 2017. That answer is not in the record, and neither are any of the other pleadings filed in the next 12 months, and we glean what occurred in the case from the register of actions, which, we note, does not meaningfully describe most of the pleadings. As best we can tell, what occurred included this:

- A case management conference scheduled for May 18, 2017, apparently continued to May 19, and then to May 24, at which the case was set for jury trial for May 14, 2018. The court also ordered the case to private mediation.

- Various dismissals were filed.

- A motion for good faith settlement was filed on February 14, 2018, which motion was granted on March 15. Another such motion was filed on April 9, which was granted on May 17. Thus, it appears that by May 2018 at least eight of the defendants had been removed from the case, no fewer than six by dismissal and two by good faith settlements. Whether any defendant beyond Du-All remained in the case is not apparent.

Meanwhile, on March 7, 2018, Du-All filed a motion to continue the trial, set for hearing on March 15. According to a later-filed stipulation, the court heard the motion to continue on March 15, but deferred ruling on it until the April 27 case management conference. Then, on March 16, counsel for plaintiffs and Du-All filed a stipulation, with an order signed by the court, continuing the trial to June 25.

We close our brief discussion of what occurred in the case with an observation of what did not occur-discovery disputes. That is, review of the 28-page register of actions shows that between November 2016, when the *491complaint was served, and *214mid-May 2018, the only motion involving discovery was plaintiffs' motion for relief from waiver for failing to make objections to written discovery. No motion to compel was filed by any party.2 Put otherwise, from all indications all parties, including Du-All, fully complied without compulsion in any discovery in which it was involved, demonstrating that at all times Du-All and its counsel apparently acted cooperatively and appropriately. And without gamesmanship.

That gets us to May 2018, and the issue here.

On May 7, Du-All served its expert witness disclosure, identifying the two experts it "expected" to call at trial: (1) a health and safety management consultant, and (2) a structural engineer.

On May 7, plaintiffs served their expert witness disclosure, also identifying a safety consultant and a structural engineer. In addition, plaintiffs disclosed five other experts to testify on various topics, as follows: (1) Tracy Albee, a registered nurse and life care planner, to testify regarding past and future injury-related needs and costs; (2) Digby Macdonald, a chemist, to testify to the effects of rust and corrosion; (3) Robert Johnson, a forensic economist, to testify to past and future economic losses; (4) Dr. Ted Scott, a physiatrist, to testify to damages and injuries and their cause and effects; and (5) Scott Simon, a vocational rehabilitation consultant, to testify to functional limitations and need for assistance. That same day, plaintiffs produced their life care plan.

Following receipt of plaintiffs' expert disclosure and the life care plan, Du-All determined that supplemental experts would be necessary, and it retained several supplemental experts to rebut the anticipated testimony of the experts disclosed by plaintiffs.

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Cite This Page — Counsel Stack

Bluebook (online)
246 Cal. Rptr. 3d 211, 34 Cal. App. 5th 485, Counsel Stack Legal Research, https://law.counselstack.com/opinion/du-all-safety-llc-v-superior-court-calctapp5d-2019.