Filed 4/11/13 Milner v. Regents of U.C. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LARRY D. MILNER, SR., D060037
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2008-00078431- CU-PO-CTL) THE REGENTS OF THE UNIVERSITY OF CALIFORNIA,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, Luis R.
Vargas, Judge. Reversed.
Plaintiff and appellant, Larry D. Milner, Sr. (Plaintiff) sued defendant and
respondent, The Regents of the University of California (the Regents) on medical
malpractice theories arising out of the death of his 29-year-old son, Larry Milner, Jr.
("Larry Jr."), who was hospitalized at the Regents' University of California San Diego
Medical Center and being treated for a variety of medical problems. Since Plaintiff was representing himself in the trial court and was out of the country on military deployment
after he filed his complaint, the court granted several continuances of the trial date. The
month before trial, the court denied a summary judgment motion by the Regents, after
Plaintiff supplied a declaration about causation of harm from a retained expert medical
witness.
At trial call, the Regents obtained judgment on their motion for nonsuit, following
the trial court's granting of their motion in limine that disallowed any late designation of
Plaintiff's expert medical witness. (Code Civ. Proc., § 2034.720; all further statutory
references are to the Code of Civil Procedure unless otherwise specified.) Without that
expert being designated, Plaintiff could not address at trial the element of causation of
injury from the alleged medical negligence. (Jennings v. Palomar Pomerado Health
Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 (Jennings).)
Plaintiff challenges the resulting judgment, contending it was an abuse of
discretion for the trial court to exclude his expert from testifying. He argues that his
"delay in designating that expert was, at most, an honest mistake and was not
unreasonable under controlling law," specifically, section 2034.720. Plaintiff relies on
that section to argue that "other, more appropriate alternatives existed to address the
Regents' objection to Dr. [Stephen L.] Fischer's testimony at trial," such as imposition of
terms and conditions for permitting the late designation (§ 2034.720, subd. (d)), since the
Regents had become aware of the content of Dr. Fischer's proposed testimony at trial,
through the summary judgment proceedings.
2 Plaintiff consequently argues the trial court erred in granting the Regents' nonsuit
motion, since Plaintiff could presumably have presented sufficient expert opinion and
nonexpert evidence from which a trier of fact could have found causation of the harm
from the actions or inactions of the Regents.
We agree with Plaintiff that given the Regents' advance knowledge of the identity
of Plaintiff's expert witness and his views, and in light of the difficulty evidenced in the
record about Plaintiff's problems in navigating trial procedure, the trial court abused its
discretion in excluding the expert testimony, since there was no showing of undue
prejudice to the Regents in allowing a late designation conditioned on a reasonable
process for deposition. On this record, it was inconsistent for the trial court to end the
case in this manner when it had previously exercised its discretion to allow continuances,
to attempt to settle the case, and otherwise to accommodate the needs of Plaintiff in
representing himself. The trial court did not adequately apply the statutory criteria in
section 2034.720, the nonsuit was unwarranted, and we reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Larry Jr.'s Illness and Medical Care
Larry Jr. suffered from numerous ailments, including lupus, anemia, and
congestive heart failure. In August 2006, he had received a kidney transplant and was
required to take immunosuppressive medications to prevent rejection of the organ. This
type of medication is known by physicians to make a patient more susceptible to
opportunistic infections.
3 In January 2007, Larry Jr. was being treated for such an infection by the Regents'
staff, and he was admitted to the hospital and given broad spectrum antibiotics. After a
period of time, he was discharged to a skilled nursing facility for continued antibiotic
treatment. During treatment, he was given a chest x-ray that revealed a 4.l cm. mass in
his lung, suggesting there was a growth or neoplasm there.
During February 2007, Larry Jr. was receiving antibiotics and being monitored by
Regents' physicians. He went to the infectious disease clinic on February 20, 2007 for
further tests and evaluation and the doctors diagnosed anemia-related side effects from
the powerful antibiotics he had received. The next day, after he was readmitted to the
hospital, another chest x-ray showed there was a 10 cm. lung mass, where the smaller one
had been. A radiology report comparing the two x-rays indicated that the size of that
mass was "unchanged."
Larry Jr. soon became sicker and was moved to the hospital's critical care unit
(CCU). He was suffering from compromised breathing and limited heart function. He
had a heart attack and was later pronounced dead.
At autopsy, the pathologist determined the cause of death to be septic shock,
secondary to a "disseminated zygomycosis infection" (a large fungal infection) in the
lung and heart tissues, and a background bacterial infection. This type of large fungal
infection will normally be fatal unless aggressive treatment is quickly initiated through
the introduction of anti-fungal medications. Immunocompromised patients whose
immune systems have been further depressed through recent antibiotic use are
particularly vulnerable to such infections.
4 B. Litigation and Trial Continuances; Regents' Expert Designation
Acting in propria persona, Plaintiff filed his medical malpractice complaint against
the Regents in February 2008. In April 2009, he obtained counsel, who filed a first
amended complaint (FAC) alleging wrongful death, in that Larry Jr. suffered from a
deadly fungal lung infection, which was not properly diagnosed, monitored, or treated by
his health care providers. Plaintiff alleged that the knowledge gained by the Regents'
staff members about this patient's medical history, including the compromised nature of
his immune system, imposed upon them a heightened obligation to timely diagnose and
actively treat the presence of a rapidly growing fungal infection in his lung. The Regents
filed an answer and discovery began. At a hearing on March 23, 2010, the court set a
trial date of September 24, 2010, along with other calendar dates. The expert witness
exchanges were scheduled for July 16 and July 30, 2010.
During much of the litigation, Plaintiff was employed as an active duty naval
officer and was deployed in the South Pacific. Plaintiff had difficulty retaining counsel
to pursue the case in his absence, which he blamed upon the complexity of the case and
the financial limitations on recovery posed by medical malpractice regulations. In April
2010, the Regents filed a summary judgment motion and obtained a hearing date. The
Regents complied with the original expert designation date, and identified their expert as
Dr. Gonzalo R. Ballon-Landa, who is an internist with a subspecialty in infectious
disease, who has been in private practice as an infectious disease consultant since 1983.
At hearings in June and September 2010, Plaintiff's counsel sought to withdraw
and the court told Plaintiff he needed to retain a new attorney by the end of October 2010.
5 Plaintiff got new military orders and returned to California by October 1, 2010. The trial
date was continued from October 15, 2010 to January 21, 2011. Plaintiff could not find
new counsel and continued to represent himself. At a continuance request filed
November 29, 2010, Plaintiff represented that he had found a medical expert, Dr. Fischer
from Louisiana, to prepare a declaration in opposition to the summary judgment motion.
Under those circumstances, the court granted Plaintiff's request for another
continuance of the trial date, from January 2011 to April 2011. The parties agreed to
continue the hearing date for the summary judgment motion to March 11, within 30 days
before trial. The December 1, 2010 minute order granted Plaintiff's ex parte request to
continue "all dates," moving the summary judgment from December 2010 to March 11,
2011, and continuing trial until April 15, 2011. The record is unclear about whether the
expert exchange dates, originally set for July 16 and 30, 2010 (for a Sept. 2010 trial) were
also continued, as the minute order does not say.
C. Summary Judgment Motion; Continuance; Plaintiff's Expert Designation
In support of the Regents' summary judgment motion, they argued that any alleged
negligence on the part of their health care providers did not cause the death of Larry Jr.
Their expert, Dr. Ballon-Landa, provided a declaration stating he had reviewed five
volumes of patient records dating back to 2001, and was qualified to render an opinion on
causation issues. He summarized the treatment that Larry Jr. received from January 13,
2007 until his death, and gave his opinion that Larry Jr.'s pre-existing medical conditions
were a significant factor in the development of the deadly fungal infection, as well as his
inability to fight it. This kind of infection has an extremely high mortality rate, and 50 to
6 85 percent of all patients who have compromised immune systems will die from it,
regardless of the treatment provided. The doctor thus stated that to a reasonable degree
of medical probability, no matter when treatment would have been initiated upon
diagnosis, and no matter what treatment could have been rendered, Larry Jr. would have
died from the infection. The doctor believed that an earlier transfer to the CCU would
not have altered the course of the infection nor prevented the death. He thus gave his
opinion that the moment Larry Jr. became infected with this fungus, he was "destined to
die" from it, and nothing that the Regents providers did or failed to do caused his death,
nor did anything they did contribute to his death.
Plaintiff did not file opposition to the motion until February 2011. He claimed
medical negligence had caused Larry Jr.'s death, based on a declaration from Dr. Fischer,
a licensed Louisiana physician trained in preventive medicine and public health. Dr.
Fischer stated that based on his review of the medical records, and the defense doctor's
declaration, his opinion was that the Regents' medical staff had failed to timely and
properly investigate, work-up, evaluate, and treat Larry Jr.'s lung infection. According to
Dr. Fischer, the first chest x-ray disclosing there was a lung lesion should have been
followed up with anti-fungal medication, and if this had been done, the Regents' doctors
could have prolonged Larry Jr.'s life. He therefore opined that the Regents had breached
the standard of care in their failure to properly diagnose and timely treat that condition,
and therefore, that failure caused his death.
The Regents filed reply papers, including written objections to the declarations by
Dr. Fischer and by Plaintiff. They challenged the foundation for the opinions given by
7 Dr. Fischer and stated they were only conclusory and speculative opinions. (Jennings,
supra, 114 Cal.App.4th 1108, 1117.)
On March 11, 2011, the trial court heard argument and denied summary judgment,
on the basis that triable issues of fact had been raised regarding causation of injury, and
whether Larry Jr. possibly could have lived longer if his lung mass had been worked up
and if he had been more closely followed as an inpatient and outpatient. However, the
court frankly told Plaintiff that the threshold for denying the motion was pretty low, and
the court did not intend to communicate a "wholehearted endorsement" of the quality of
Dr. Fischer's expert opinion.
On March 15, 2011, after the denial of summary judgment, Plaintiff prepared a
formal designation of Dr. Fischer as his expert witness pursuant to section 2034.210, but
did not serve it until March 30, 2011. Plaintiff offered to promptly make Dr. Fischer
available for deposition by the Regents.
Plaintiff and counsel for the Regents collaborated to prepare a joint trial readiness
conference report (TRC), that was dated March 24, 2011. It lists Dr. Fischer as a
"witness" for Plaintiff. The joint report does not contain any objection by the Regents to
the timeliness of Plaintiff's recent expert witness disclosure, or explain how they were
prejudiced by that disclosure. Instead, the copies in this record are not conformed and
not signed, and state as a matter of form that to the best of the parties' knowledge, all
deadlines set by the court for exchange of experts had been met and discovery was
complete.
8 D. Expert Evidence and Nonsuit Rulings
Plaintiff obtained counsel to assist him in settlement efforts, and on April 19,
2011, the trial court conducted a settlement conference, but it was unsuccessful. Trial
began April 26, 2011. At the outset of trial, the Regents moved to exclude expert
testimony from Plaintiff, for lack of a timely designation. They argued that Plaintiff had
been required to disclose Dr. Fischer by July 30, 2010, to counter-designate the Regents'
expert declaration (made pursuant to the original trial date set in this matter). Thus,
Plaintiff's designation on March 15, 2011, even in light of the continuances granted by
the trial court, was tardy on its face.
In response, Plaintiff argued his failure to previously designate Dr. Fischer was
due to "mistake, inadvertence . . . or excusable neglect." (§ 2034.720, subd. (c)(1).) He
reiterated he had been deployed overseas with the Navy in the summer of 2010, was still
searching for new counsel at that time, and believed that the designation date had been
continued by the trial court along with all other relevant calendar events, and that he had
been misled by defense counsel in some way. He returned to San Diego in late
September 2010. He claimed he had not received the Regents' original designation from
July 2010, although he later saw a proof of service for it.
Plaintiff thus argued it was excusable that he did not formally designate Dr.
Fischer as his medical expert earlier. He also claimed he had brought an ex parte motion
for relief from late designation, but since the parties were pursuing a court-ordered
settlement conference in April of 2011, he took the motion off calendar. He said he was
willing to make Dr. Fischer available for deposition immediately.
9 At argument, the court candidly told Plaintiff that the summary judgment
declaration Plaintiff had offered was not as "robust" as it could have been, but summary
judgment principles had required a more cautious ruling. After emphasizing that a jury
panel was waiting, and the court had made numerous efforts to be fair to Plaintiff, and
there had been no trickery by counsel for the Regents, the court granted the Regents'
motion to exclude Plaintiff's expert. The court then discussed with counsel for the
Regents what the next step should be, suggesting a nonsuit, due to the evident difficulties
with proving the causation element of Plaintiff's professional negligence claim, without
any expert evidence. Next, the Regents' counsel brought an impromptu nonsuit motion.
In response, Plaintiff's offer of proof was Dr. Fischer's declaration, from his summary
judgment opposition.
In granting the nonsuit motion, the trial court essentially ruled Plaintiff had no
case and had failed to present any acceptable excuse for delay. Judgment in the Regents'
favor was entered and this appeal followed.
DISCUSSION
I
INTRODUCTION AND STANDARD OF REVIEW
The vehicle for Plaintiff's request for relief from his late expert designation was
the opposition he filed to the Regents' motion in limine for exclusion of his expert
testimony. Plaintiff argued he could show the kind of "mistake, inadvertence, surprise, or
excusable neglect" that is designated as potentially worthy of relief in section 2034.720,
10 subdivision (c)(1). On appeal, he contends the trial court abused its discretion by
granting the Regents' motion to exclude his expert evidence. (§ 2034.720.)
In the subsequent nonsuit ruling, the trial court determined as a matter of law that
the evidence relied on by Plaintiff (Dr. Fischer's declaration) would be insufficient to
permit the jury to find in his favor. That declaration was produced in February 2011 for
the hard fought summary judgment proceedings heard in March 2011. The court denied
the summary judgment motion, determining that Dr. Fischer's declaration raised at least
some triable issues about causation of injury.
Because of the nature of these inextricably interrelated issues about the exclusion
of expert testimony and the granting of a nonsuit, our review is conducted by determining
if the proposed expert testimony could have provided legally sufficient support for a
finding in favor of the plaintiff on the issue of causation. (Jennings, supra, 114
Cal.App.4th 1108, 1119, fn. 9.) The trial court's ruling on a motion to exclude an expert's
opinion is reviewed for an abuse of discretion. (Boston v. Penny Lane Centers, Inc.
(2009) 170 Cal.App.4th 936, 950 (Boston).) Such an exercise of "discretion is always
delimited by the statutes governing the particular issue," here, the terms of section
2034.720. (See Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107 (Zellerino).)
To decide whether a nonsuit is justified, " 'the court may not weigh the evidence or
consider the credibility of witnesses. Instead, the evidence most favorable to plaintiff
must be accepted as true and conflicting evidence must be disregarded. The court must
give "to the plaintiff ['s] evidence all the value to which it is legally entitled, . . .
indulging every legitimate inference which may be drawn from the evidence in
11 plaintiff['s] favor." ' [Citation.] A mere 'scintilla of evidence' does not create a conflict
for the jury's resolution; 'there must be substantial evidence to create the necessary
conflict.' [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.)
"The plaintiff must be given an opportunity to present all the facts he expects to prove
before a nonsuit is proper." (Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268, 273.)
We next examine Plaintiff's claim that the statute, properly applied, would have
allowed him a reasonable opportunity to cure the defective designation he made, even
under any appropriately imposed terms or conditions. (§ 2034.720, subd. (d).) We are
mindful that when Plaintiff was acting as a litigant in propria persona, he was "entitled to
the same, but no greater, rights than represented litigants and [was] presumed to know the
[procedural and court] rules." (Wantuch v. Davis (1995) 32 Cal.App.4th 786, 795.) We
are also mindful that the trial court repeatedly acknowledged and accommodated some of
Plaintiff's unavoidable logistical difficulties, up to a point, and we review the current
rulings in the factual and legal context of the entire set of proceedings. (§ 906 [appellate
court may address intermediate orders affecting the judgment on appeal].)
II
EXPERT DESIGNATION RULES
A. Statutory Scheme
Section 2034.300 provides in relevant part: "[O]n objection of any party who has
made a complete and timely compliance with Section 2034.260, the trial court shall
exclude from evidence the expert opinion of any witness that is offered by any party who
has unreasonably failed to do any of the following: (a) List that witness as an expert
12 under Section 2034.260." (Italics added.) The Regents raised objections to the late
designation, but the record is susceptible to different conclusions about the timeliness of
those objections, and whether the trial court properly applied the criteria of section
2034.720 in determining that Plaintiff's failure to list the expert at an earlier date was
unreasonable.
"The legal principles that govern the subject of discretionary action vary greatly
with context." (See City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298.)
According to its title, section 2034.720 defines the scope of judicial authority to grant
leave for tardy filing of expert witness information and to require the satisfaction of
certain conditions. Section 2034.720 codifies the factors on which discretion shall be
exercised, and the trial court is required to evaluate an application for relief for whether
the statutory criteria have been met.
"Action that transgresses the confines of the applicable principles of law is outside
the scope of discretion and we call such action an 'abuse' of discretion. [Citation.] If the
trial court is mistaken about the scope of its discretion, the mistaken position may be
'reasonable,' i.e., one as to which reasonable judges could differ. [Citation.] But if the
trial court acts in accord with its mistaken view the action is nonetheless error; it is wrong
on the law." (City of Sacramento v. Drew, supra, 207 Cal.App.3d 1287, 1297-1298.)
Under section 2034.720, subdivisions (a) through (c), the court must use its
discretion in evaluating the relevant criteria, which include any reliance by the objecting
party on the lack of any expert designation; the existence of any prejudice to the
objecting party in attempting to proceed on the merits; and the degree of diligence
13 exhibited by the tardy party, and whether genuine mistake, inadvertence, surprise, or
excusable neglect existed for the tardy party, as well as any remedial action. Under
section 2034.720, subdivision (d), the court may impose conditions on relief, such as
making the expert available immediately for a deposition, "and on any other terms as may
be just . . . ."
B. Noncompliance with Expert Designation Rules
Examples of when a trial court, under section 2034.720, has found a failure to
comply with expert designation rules to be "unreasonable," include a party's conduct that
gives the appearance of gamesmanship, such as undue rigidity in responding to expert
scheduling issues. (Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495, 1504
(Stanchfield).) When an expert was not fully prepared at deposition, but the party
offering the expert said he would be made available in a day or two, it was deemed
unreasonable for the opposing party to say nothing, but then to move, during trial, to
exclude the expert. (Ibid.) The operative inquiry is whether the conduct being evaluated
will compromise these evident purposes of the discovery statutes: "to assist the parties
and the trier of fact in ascertaining the truth; to encourage settlement by educating the
parties as to the strengths of their claims and defenses; to expedite and facilitate
preparation and trial; to prevent delay; and to safeguard against surprise." (Boston,
supra, 170 Cal.App.4th 936, 950.)
In Zellerino, the conduct being evaluated was a party's actions in noncompliance
with statutory disclosure requirements, by producing late, incomplete expert witness
information, and refusing to make the experts available for deposition. This amounted to
14 "a comprehensive attempt to thwart the opposition from legitimate and necessary
discovery," justifying exclusion of evidence. (Zellerino, supra, 235 Cal.App.3d at p.
1117; see Stanchfield, supra, 37 Cal.App.4th 1495, 1504-1505.)
In Boston, supra, 170 Cal.App.4th 936, the court interpreted section 2034.300 as
allowing the trial court to exercise its discretion to exclude expert opinion, when the party
offering it "has unreasonably failed to produce expert reports and writings." (Boston,
supra, at p. 952, citing §§ 2034.270, 2034.300, subd. (c).) "If the trial court concludes
that a party intentionally manipulated the discovery process to ensure that expert reports
and writings were not created until after the specified date, it may find the failure to
produce the reports and writings was unreasonable and exclude the expert's opinions.
Accordingly, a party who fails to instruct its expert to create all reports and writings
before the specified date does so at its own risk." (Boston, supra, at p. 952.)
Also, "[t]he behavior of the party seeking to exclude the expert testimony is
relevant to the reasonableness inquiry. If any unfairness arising from the proffering
party's late or incomplete disclosure was exacerbated by the party seeking exclusion, the
court is less likely to find the conduct of the party offering the expert to be unreasonable."
(Boston, supra, 170 Cal.App.4th 936, 954.) "[T]he opportunity for meaningful
deposition is one of the circumstances the trial court should consider when making the
reasonableness determination." (Ibid.)
C. Role of Expert Testimony
For this type of medical negligence action, expert testimony is required for any
plaintiff to prevail. The plaintiff must establish "it is more probable than not the
15 negligent act was a cause-in-fact of the plaintiff's injury." (Jennings, supra, 114
Cal.App.4th 1108, 1118; italics omitted.) " 'A possible cause only becomes "probable"
when, in the absence of other reasonable causal explanations, it becomes more likely than
not that the injury was a result of its action.' " (Ibid.; italics omitted.) "[C]ausation in
actions arising from medical negligence must be proven within a reasonable medical
probability based on competent expert testimony, i.e., something more than a '50-50
possibility.' " (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1504.) "[T]he evidence
must be sufficient to allow the jury to infer that in the absence of the defendant's
negligence, there was a reasonable medical probability the plaintiff would have obtained
a better result." (Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th 208, 216.)
Although causation is generally a question of fact for the jury, expert testimony
may in some cases preclude a finding of causation by a trier of fact. In such cases, the
causation question is decided as a matter of law. (See Duarte v. Zachariah (1994) 22
Cal.App.4th 1652, 1656-1660; Lucas v. County of Los Angeles (1996) 47 Cal.App.4th
277, 288-289; Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 666.)
Because of specialized medical malpractice evidentiary principles, a trial court
ruling on a nonsuit request must closely scrutinize the stated facts underlying the expert's
declaration of opinion, and cannot take unsupported or speculative opinions at their face
value. (Jennings, supra, 114 Cal.App.4th 1108, 1118.) Nevertheless, Dr. Fischer's
declaration here was deemed adequate to withstand the Regents' summary judgment
motion on causation issues. Because of the late designation and the grant of nonsuit, no
deposition of Dr. Fischer was conducted, to further test his opinions for their validity, and
16 there was no resolution of this case on the merits. We are concerned that the trial court
treated this set of evidentiary and nonsuit motions as only a renewed summary judgment
motion, to justify throwing the case out on the basis of the same declarations as
previously presented. With those concerns in mind, we next examine the record on the
application of the statutory criteria of section 2034.720.
III
APPLICATION OF RULES
The Regents' nonsuit request, as it was guided and shaped by the trial court,
challenged the causation element of Plaintiff's professional negligence claim, and
asserted that no evidence would support an inference that the delay or manner of
treatment of Larry Jr.'s lung ailment "caused" any harm to him. Under the above
standards for consideration of expert testimony, the lack of an available expert doomed
Plaintiff's case. "Although a judgment of nonsuit must not be reversed if plaintiff's proof
raises nothing more than speculation, suspicion, or conjecture, reversal is warranted if
there is 'some substance to plaintiff's evidence upon which reasonable minds could
differ . . . .' " (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.) The
discretionary ruling disallowing the expert evidence must be evaluated in light of the
criteria provided in section 2034.720. (See Zellerino, supra, 235 Cal.App.3d 1097,
1107.)
According to section 2034.720, subdivision (a), on the topic of any reliance by the
Regents on the absence of Plaintiff's formal list of expert witnesses, we note that Plaintiff
obtained a trial continuance in December 2010, and announced at that time that he had
17 retained a medical expert. During the summary judgment motion proceedings, counsel
for the Regents pointed out that Plaintiff had still failed to designate an expert. After
summary judgment was denied, Plaintiff gave input to the Regents' counsel for
preparation of the joint TRC report, which lists Dr. Fischer as a witness. A week later,
Plaintiff served a formal expert designation, which he had apparently prepared March 15.
The December 2010 order that continued the trial referred to "all dates," and
Plaintiff could have reasonably relied on that order to believe that the July 2010
designation dates no longer controlled. Although we do not give special weight to his
status as a litigant in propria persona, it appears that he was distracted by the ongoing
summary judgment proceedings and lost his focus on other technical litigation
requirements.
However, there is no indication in the record that this Plaintiff's loss of focus
amounted to the kind of gamesmanship or manipulation that has been found to be
unworthy of relief from late designations. (See Zellerino, supra, 235 Cal.App.3d at
p. 1117; Boston, supra, 170 Cal.App.4th at p. 954.)
Nor do we base our analysis on any "exacerbation" of the situation by the party
seeking exclusion, the Regents. (Boston, supra, 170 Cal.App.4th 936, 954.) Instead, we
are presented with somewhat ambiguous court orders, and we think the confusion that
resulted was to be expected and was not completely unreasonable. For example, the joint
TRC report prepared by the parties is at least inaccurate, and at most sloppy and
misleading, on the status of the expert designation orders. (See Stanchfield, supra, 37
18 Cal.App.4th 1495, 1504 [reasonableness limitation may prevent parties from waiting
until trial to raise objections that could have been raised beforehand].)
Regarding the Regents' degree of prejudice or inability to defend on the merits
(§ 2034.720, subd. (b)), it is most regrettable that Plaintiff did not comply with disclosure
requirements and make Dr. Fischer available earlier for deposition. The Regents
justifiably pointed out that Dr. Fischer's declaration was at least somewhat conclusory
and speculative, under case law standards. (Jennings, supra, 114 Cal.App.4th at pp.
1117-1118.) However, it is possible that more information could be gained at deposition,
without undue prejudice to the Regents' defense, except for expenditures of time and
money. Under section 2034.720, subdivision (d), an order allowing a tardy designation
must be conditioned upon the moving party making the expert available immediately for
deposition, and on any other terms as may be just, and the court apparently failed to
consider such options. The trial court may have had second thoughts about the previous
denial of the summary judgment motion, but these rulings were made in an entirely
different legal context, and they required consideration of more than the current adequacy
or inadequacy of Dr. Fischer's declaration.
Regarding Plaintiff's required degree of diligence, he showed some justification
for his failure to submit the information earlier as the result of mistake, inadvertence,
surprise, or excusable neglect. (§ 2034.720, subd. (c)(1).) He notified the court and
counsel about his reliance on Dr. Fischer's expert opinion around the time that the order
was made continuing trial and "all dates." Once the summary judgment motion was
denied, Plaintiff took action to prepare the designation, only to go off track again when
19 settlement discussions were scheduled. Nevertheless, he did not completely hide the ball
or thwart discovery. (Zellerino, supra, 235 Cal.App.3d 1097, 1117.)
The operative inquiry should be whether Plaintiff's delays and misunderstandings
were so egregious as to prevent him from taking advantage of the policy promoting
resolution of cases on the merits, and of the main purposes of the discovery statutes: to
ascertain the truth; to educate the parties as to the strengths of their claims and defenses;
to expedite and facilitate preparation and trial; to prevent delay; and to safeguard against
surprise. (Boston, supra, 170 Cal.App.4th at p. 950.)
We think the trial court was mistaken about the circumstances as they affected the
scope of its discretion. "[I]f the trial court acts in accord with its mistaken view the
action is nonetheless error; it is wrong on the law." (City of Sacramento v. Drew, supra,
207 Cal.App.3d 1287, 1298.) We do not substitute our discretion for that of the trial
court, but we do find that the court failed to act in accordance with the statutory
guidelines when it terminated the case for these technical procedural problems, in light of
the lack of showing of undue prejudice to the Regents, and the availability of lesser
remedies under the statute. Under all the relevant circumstances and the statutory
guidelines, the trial court's rulings to exclude Plaintiff's expert designation and to grant a
nonsuit amounted to an abuse of discretion and error. We reverse.
20 DISPOSITION
The judgment is reversed. Each party shall bear its own costs on appeal.
HUFFMAN, J.
WE CONCUR:
BENKE, Acting P. J.
McDONALD, J.