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Perry v. Bakewell Hawthorne, LLC

Supreme Court of California

February 23, 2017

WILSON DANTE PERRY, Plaintiff and Appellant,
BAKEWELL HAWTHORNE, LLC, Defendant and Respondent.

         Superior Court Los Angeles County No. BC500198 Ct. App. 2/2 B264027 Gregory Keosian Judge.

          Howard Posner; Bral & Associates and S. Sean Bral for Plaintiff and Appellant.

          Schumann | Rosenberg, Kim Schumann and Jeffrey P. Cunningham for Defendant and Respondent.

          Horvitz & Levy, Steven S. Fleischman, Joshua C. McDaniel; Gordon & Rees and Don Willenburg for Association of Southern California Defense Counsel and Association of Defense Counsel of Northern California and Nevada as Amici Curiae on behalf of Defendant and Respondent.

          CORRIGAN, J.

         After a trial date is set, a party may demand a simultaneous exchange of expert witness information by all parties. (Code Civ. Proc., § 2034.210.)[1] Unreasonable failure to respond makes the noncomplying party's expert opinion inadmissible, unless the court grants relief. (§§ 2034.300, 2034.620, 2034.720.) The question here is whether this exclusionary rule applies at the summary judgment stage. The expert witness disclosure statutes provide no answer. However, section 437c, subdivision (d) requires that affidavits and declarations submitted in summary judgment proceedings “set forth admissible evidence.” Therefore, we hold that when the court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.

         Plaintiff Wilson Dante Perry sued Bakewell Hawthorne, LLC and JP Morgan Chase Bank, NA, claiming he was injured in a fall on property owned by Bakewell and leased by Chase. Chase demanded an exchange of expert witness information, but Perry made no disclosure. In response to Bakewell's motion for summary judgment, however, he submitted the declarations of two experts opining that the stairs he fell on were in disrepair and did not comply with building code and industry standards. The trial court sustained Bakewell's objection to the introduction of these declarations because Perry had failed to disclose the experts. Summary judgment was granted. Perry moved for reconsideration, but the motion was never heard because it was discovered that the law license of Perry's counsel had been suspended. After judgment was entered for Bakewell, Perry substituted counsel and unsuccessfully moved for permission to designate his experts.

         The Court of Appeal affirmed the judgment in Bakewell's favor.


         Perry relies on Kennedy v. Modesto City Hospital (1990) 221 Cal.App.3d 575 (Kennedy). There, the trial court entered summary judgment for the defendants after refusing to consider the declaration of a plaintiff's expert who had not been timely designated. (Id. at pp. 578-579.) The Court of Appeal reversed. As we explain, its analysis was flawed.

         The Kennedy court noted that the timing requirements of the expert witness disclosure statutes and the summary judgment statute are not coordinated. Unless the court orders otherwise, summary judgment motions are not made until 60 days after the opposing party's general appearance, and are heard no later than 30 days before trial. (Kennedy, supra, 221 Cal.App.3d at p. 581; see § 437c, subd. (a)(1) & (3).) A demand for expert witness information, on the other hand, must be made no later than the 10th day after the initial trial date is set, or 70 days before that trial date, whichever is nearer the date. The exchange must occur 20 days after the demand or 50 days before the initial trial date, whichever is later. As with summary judgment motions, the court may alter the deadlines on a showing of good cause. (Kennedy, at p. 580; see §§ 2034.220, 2034.230.)[2]

         Without a court order, the period for demanding “and exchanging expert witness information..., which is keyed to the initial trial date, would ordinarily preclude making and determining a motion for summary judgment after the... exchanges have been completed. The summary judgment motion was noticed and heard in this case within this time frame only because the trial judge continued the initial trial date.[3] Normally a summary judgment will be heard and determined before the exchange of expert witness information is completed.... Thus, considering the timing alone, there is no ascertainable [legislative] intent to make the exclusion of expert testimony applicable to a summary judgment proceeding.” (Kennedy, supra, 221 Cal.App.3d at p. 581.)

         Kennedy emphasized the various references in the expert witness disclosure statutes to “ ‘expert trial witnesses, ' ” “ ‘evidence at the trial, ' ” testimony “ ‘at the trial, ' ” and “ ‘the trial court' ” that “ ‘shall exclude from evidence the expert opinion' ” offered by a party who has failed to make the required disclosure. (Kennedy, supra, 221 Cal.App.3d at p. 582, italics added; see, e.g., §§ 2034.210, 2034.260, 2034.300.) “We infer from these provisions the Legislature had in mind the exclusion of expert testimony offered by noncomplying parties at trial, not at a pretrial proceeding. [¶] Admissibility at trial is not necessarily the same as admissibility at a summary judgment proceeding. For example, a declaration is not admissible at trial, but is expressly made admissible by section 437c in a summary judgment proceeding. So too, evidence made inadmissible at trial by reason of the express procedural bar [of the disclosure statutes] does not necessarily make the evidence inadmissible in a summary judgment proceeding.” (Kennedy, at p. 582.) The court further reasoned that the plaintiff might be able to overcome the bar by seeking leave to amend her disclosure or make a tardy disclosure. (Id. at p. 583; see §§ 2034.610, 2034.710.)

         The Kennedy court pronounced that it wrote “on a clean slate” because no case law or statutory history bore on the issue at hand. (Kennedy, supra, 221 Cal.App.3d at p. 581.) But the issue had been addressed, albeit briefly, in Mann v. Cracchiolo (1985) 38 Cal.3d 18 (Mann). There the plaintiff did not timely designate an expert, and the trial date was continued. (Id. at pp. 26-27.) In this court the principal issue was the sufficiency of the expert's declaration, but the Mann defendants also argued that the declaration had to be disregarded at summary judgment because the expert could not testify at trial. The Mann court noted that under the disclosure statutes, “the court upon such terms as may be just may permit a party to call an expert witness not included in the list of expert witnesses so long as the court finds that the party made a good faith attempt to list expert witnesses, that the party has given notice to the opposing party..., and that as of the date of the exchange of lists the party would ‘not in the exercise of ...

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