Filed 7/24/24 Flores v. Superior Court CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THOMAS PEDRO FLORES,

Petitioner,

v.

THE SUPERIOR COURT OF FRESNO 

COUNTY,

Respondent;

CITY OF FRESNO,

Real Party in Interest.

F087135

(Super. Ct. No. 19CECG00219)

OPINION

ORIGINAL PROCEEDINGS; petition for peremptory writ of mandate. Jeffrey Y. 

Hamilton, Jr., Judge.

Law Offices of David Azizi, David Azizi; Halpern Law Firm and Derryl Stephen 

Halpern for Petitioner.

No appearance for Respondent.

Whitney, Thompson & Jeffcoach, Mandy L. Jeffcoach and Paul Gaus for Real 

Party in Interest.

-ooOooPetitioner Thomas Pedro Flores filed a personal injury action against the real party 

in interest the City of Fresno (City) in 2019. Discovery closed in February 2023 with the 

exception of several depositions to be taken shortly after. The deposition of petitioner’s 
2.

treating physician, who was identified as his only expert witness, was repeatedly delayed

and not held until August 16, 2023. (All dates are in the year 2023 unless indicated 

otherwise.) The trial court ordered the exclusion of testimony from petitioner’s expert 

witness on causation and damages pursuant to the exclusion sanction of Code of Civil 

Procedure section 2034.300 in response to City’s motion in limine. (Undesignated 

statutory references are to the Code of Civil Procedure.) Petitioner filed a peremptory 

writ of mandate arguing the expert’s testimony should not have been excluded. This 

court ruled on the writ, ordering the trial court to vacate its decision with respect to the 

exclusion of the expert’s testimony or show cause as to why the relief should not be 

granted.

This case now comes before this court on City’s reply to the return to the order to 

show cause after the trial court declined to vacate its order excluding petitioner’s expert 

from testifying at trial. A single issue remains: whether the trial court abused its 

discretion when it excluded petitioner’s expert witness from testifying at trial. For the 

reasons set forth in this opinion, the trial court’s order is reversed and the matter is 

remanded to the trial court with the direction to vacate its order on City’s motion in 

limine excluding petitioner’s expert witness from testifying regarding causation and 

damages at trial and to enter an order denying that portion of City’s motion.

PROCEDURAL BACKGROUND

On January 18, 2019, petitioner filed a complaint for damages against City arising 

out of a trip and fall incident that occurred on a sidewalk owned by City.

Petitioner timely served his expert witness designation on January 27, naming 

neurosurgeon Ali Najafi, M.D. (hereafter, the expert) as the expert to testify on behalf of 

petitioner at trial. Accompanied with petitioner’s expert witness designation was a 

declaration and narrative statement of the general substance of the testimony the expert 

was expected to give at trial. City also timely served its expert witness designation and 

supporting declaration on January 27.
3.

On February 22, the trial court vacated the original trial date and continued the 

trial to September 25. The court ordered discovery closed except for several named 

expert depositions, including the deposition of the expert. The deposition of the expert 

was ordered by the court to take place on March 1. A first amended notice of deposition

was filed on February 23 in accordance with the expert discovery order, setting the 

deposition of the expert for March 1. The notice contained a request for the production 

of documents, including the expert’s “entire file” related to the action. City cancelled the 

deposition of the expert on February 27 because it had not received the expert’s file and 

report. Petitioner responded on February 28 informing City’s counsel that additional 

dates for the expert’s deposition would be provided.

City’s counsel e-mailed petitioner’s attorney on March 3 and 6 requesting dates to 

take the deposition of the expert. Petitioner’s attorney responded on March 6 

representing he reached out to the expert’s office to get new dates and is “waiting to hear 

back.”

On April 3, 12, and 17 City’s counsel requested dates for the expert’s availability 

for a deposition. Petitioner’s counsel did not respond. On April 25 counsel for City 

advised it would seek court assistance if petitioner’s counsel did not provide dates for the 

expert’s deposition. Petitioner’s counsel responded he would “provide dates for [the 

expert’s] deposition shortly.”

Petitioner’s counsel contacted attorney for City via telephone on July 13 to 

schedule the expert’s deposition on August 7. On July 19, petitioner’s counsel cancelled 

the expert’s deposition on the grounds that the expert “is no longer available on 

August 7th” and proposed taking the deposition on August 14.

Counsel for City e-mailed petitioner’s attorney on August 9, reminding him that 

the expert file was due. Petitioner’s counsel said he would provide the expert’s file 

“promptly.” On August 10, petitioner’s counsel requested a different date for the 

expert’s deposition.
4.

The expert finished his expert report on August 12. City received the expert’s 

report on August 15. City deposed the expert on August 16.

After the deposition, City sent five e-mails to petitioner’s counsel seeking the 

expert’s retention agreement, billing statements, and communications between 

petitioner’s counsel and the expert.

On September 25, counsel for City filed a motion in limine to exclude the 

testimony of the expert pursuant to section 2034.300, subdivisions (b), (c), and (d). The 

trial court granted City’s motion in limine excluding the testimony of the expert. Due to 

the alleged unexpected health condition of petitioner’s counsel, the court continued the 

trial date to December 4.

On November 13, petitioner’s counsel filed a peremptory writ of mandate 

requesting this court review the trial court’s ruling regarding the exclusion of the expert 

witness’s testimony. On November 30, this court issued an alternative writ of mandate. 

In the alternative writ, this court directed the trial court to vacate its September 27 order 

granting City’s motion in limine to exclude all testimony from the expert or show cause 

before this court why the requested relief should not issue.1

On January 3, 2024, the trial court issued an order giving notice to the parties with 

a hearing on the alternative writ.

On February 8, 2024, the trial court held a hearing regarding the alternative writ. 

The purpose of the hearing was to answer this court’s order to show cause regarding 

exclusion of testimony from petitioner’s expert witness. After hearing oral argument, the 

trial court did not vacate its order on City’s motion in limine regarding the exclusion of 

the expert’s testimony. The trial court ordered City to respond to this court as to why the 

expert should be excluded from testifying at trial.

1This court affirmed the trial court’s ruling regarding the exclusion of testimony by the 

expert related to future treatment; the order remains undisturbed as to that issue. (Jones v. Moore

(2000) 80 Cal.App.4th 557, 564–565.)
5.

DISCUSSION

Exclusion of Expert Witness’s Testimony Pursuant to Section 2034.300

Petitioner argues the trial court abused its discretion when it granted City’s motion 

in limine to exclude petitioner’s treating physician, designated as an expert, from 

testifying as to causation and damages at trial. Since the expert is petitioner’s only expert 

as to causation and damages, he argues exclusion of the expert’s testimony will 

“eviscerate” his case. City responds the court did not “eviscerate” petitioner’s case, but 

rather it was the acts of petitioner’s counsel, through a series of conduct that failed to 

comport with section 2034.300 and the purpose of the Civil Discovery Act, which led to 

the exclusion of testimony from the expert.

A. Additional Facts

A letter and deposition invoice from the expert was sent via e-mail to petitioner’s 

counsel’s office on February 8 in response to petitioner’s request to depose the expert. 

Therein, the letter stated, “In response to your request regarding a ... deposition or 

testimony in reference to the above patient, we have reserved the following time(s) and 

date(s) for the doctor indicated above.”

The expert prepared a 43-page report on August 12. The report included the 

expert’s opinion on causation and damages. The expert’s report also included summaries 

of petitioner’s treatment for the injury at issue and for seven months prior to the injury, 

responses to interrogatories, summaries of the depositions of other witnesses, medical 

billing information, and the expert’s opinion on City’s expert’s report. Prior to the 

deposition, City was not provided with billing records for the expert’s services, the 

expert’s retention letter, and communications, including e-mails, between petitioner’s 

counsel and the expert.

The expert’s deposition was taken on August 16. The expert spent nine to 12 

hours reviewing petitioner’s records and preparing his expert report. The expert testified 

as to his opinion regarding petitioner’s injuries and causation of injury. He testified he 
6.

“skimmed through” some records from 2017; however, in forming his opinion regarding 

petitioner’s injuries and causation of injury, the earliest record he relied on was from 

February 21, 2018. In conjunction with providing his opinion, the expert also reviewed 

eight deposition transcripts, which were detailed in his report. The expert testified as to 

the treatment he provided to petitioner, including questions regarding tests that the expert 

ordered petitioner to undergo prior to surgery, and the surgery petitioner underwent.

The expert stated he did not have time to review some of the records sent to him 

prior to his deposition, such as the deposition transcript of City’s expert witness. 

However, the expert testified as to the reasons he disagreed with the opinions of City’s 

expert because he reviewed City’s expert report. Part of the records the expert 

“skimmed” was a 1,600-page record review prepared by petitioner’s counsel’s office. 

The expert said he had concluded his expert report prior to receiving those records, and 

he would need a “few more days” to provide additional opinions. The expert also said he 

looked through some of the additional records provided, and based on his review, his 

opinion remained unchanged. Finally, the expert testified he had spoken to the entirety of 

the opinions he would give at trial “[u]nless additional information [was] provided that 

[he could] review ....”

With respect to the date the expert was retained, the following dialogue occurred:

“Q. ... When were you retained as an expert in this matter?

“A. I don’t know the exact date.

“Q. Can you give me an estimate.

“A. I believe a few weeks ago, but I’ll be guessing. I don’t know. 

[¶] ... [¶]

“Q. The formal retention of you as an expert happened, based on 

your best estimate, within the last couple of weeks?

“A. I don’t know. I know it was sometime this year. How many 

weeks or months, I don’t recall.
7.

“Q. ... [I]s there a written retention agreement between you and 

[petitioner’s counsel]?

“A. I don’t know. I can ask the office to see the request for expert 

information and the fee schedule that I provided to them and the retained 

check amount for the work that I do. The office would have that 

information.”

Thereafter, the expert was asked if he had billed petitioner’s counsel for any of his 

expert testimony. The expert responded, “I have not.” The expert provided his rates as 

follows:

“Q. What is the hourly rate that you are charging for your expert 

testimony?

“A. $1,000; and I believe for depositions it is $2,000 an hour; and I 

believe for appearance in court it is $7,500 for a half day or $15,000 for a 

whole day.

“Q. Can you estimate for me how many hours you have spent as a 

retained expert on this matter thus far.

“A. Somewhere between 9 to 12 hours.

“Q. And that would be at $1,000 per hour?

“A. Yes.”

In granting City’s motion in limine, the trial court said:

“The [c]ourt yesterday, with [petitioner’s counsel] present, indicated that 

the only ... thing the [c]ourt would entertain ... was a case ... supporting 

[petitioner’s] position that he can provide an expert that was unprepared. 

[¶] ... [¶] All of the motions in limine that were tentatively granted are 

granted ....”

B. Analysis

The purpose of the expert witness discovery statute is “to give fair notice of what 

an expert will say at trial. This allows the parties to assess whether to take the expert’s 

deposition, to fully explore the relevant subject area at any such deposition, and to select 

an expert who can respond with a competing opinion on that subject area.” (Bonds v. Roy

(1999) 20 Cal.4th 140, 146–147.) Indeed, “the need for pretrial discovery is greater with 
8.

respect to expert witnesses than ordinary fact witnesses because the opponent must 

prepare to cope with the expert’s specialized knowledge.” (Boston v. Penny Lane 

Centers, Inc. (2009) 170 Cal.App.4th 936, 951 (Boston).)

Failure to comply with the requirements for the exchange of expert witness 

information2 can have “drastic consequences.” (Staub v. Kiley (2014) 226 Cal.App.4th 

1437, 1445 (Staub).) Section 2034.300 provides that, with certain exceptions, “on 

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 under Section 2034.260. [¶] (b) Submit an expert 

witness declaration. [¶] (c) Produce reports and writings of expert witnesses under 

Section 2034.270. [¶] (d) Make that expert available for a deposition ....” (§ 2034.300.) 

The trial court’s decision regarding exclusion of expert testimony is reviewed for abuse 

of discretion, which includes the court’s determination as to whether the offending party 

“unreasonably” failed to comply with the expert witness disclosure rules. (Staub, at p. 

1445.)

“Failure to comply with expert designation rules may be found to be 

‘unreasonable’ when a party’s conduct gives the appearance of gamesmanship, such as 

undue rigidity in responding to expert scheduling issues.” (Staub, supra, 226 

Cal.App.4th at p. 1447.) The operative inquiry is whether the conduct being evaluated 

will compromise the purposes of the discovery statutes: “‘to assist the parties and the 

2

“Section 2034.260 sets forth the general requirements for the exchange and the 

information to be provided, which includes a list of the names and addresses of the experts

(§ 2034.260, subd. (b)(1)) and a declaration by the party’s attorney setting forth the expert’s 

qualifications (§ 2034.260, subd. (c)(1)), the expected nature of the testimony (§ 2034.260, subd.

(c)(2)), and ‘[a] representation that the expert will be sufficiently familiar with the pending 

action to submit to a meaningful oral deposition concerning the specific testimony, including any 

opinion and its basis, that the expert is expected to give at trial’ (§ 2034.260, subd. (c)(4)).”

(Staub, supra, 226 Cal.App.4th at p. 1444.)
9.

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 at p. 950.)

1. Production of an Expert Witness Declaration under Section 

2034.300, Subdivision (b)

City argues the expert testimony was properly excluded because petitioner 

unreasonably failed to fully comply with the content requirements of his expert witness 

declaration pursuant to section 2034.300, subdivision (b). (Bonds v. Roy, supra, 20 

Cal.4th at p. 146 [describing “strict procedures” for exchange of expert witness 

information, “intended to allow sufficient time before trial for experts to be identified so 

that the subject matter of their expected testimony can be fully explored at a 

deposition”].) Petitioner disagrees with this contention, arguing he timely submitted an 

accurate expert witness declaration.

Section 2034.260 governs the form and contents of an expert witness declaration, 

providing the contents of a party’s expert witness declaration shall include, among other 

things, “[a] brief narrative statement of the general substance of the testimony that the 

expert is expected to give, [¶] ... [a] representation that the expert has agreed to testify at 

the trial, [¶] ... [and] [a] representation that the expert will be sufficiently familiar with 

the pending action to submit to a meaningful oral deposition ....” (§ 2034.260 subd.

(c)(2), (3), (4).)

Turning to section 2034.260, subdivision (c)(3), petitioner’s expert witness 

declaration filed on January 27 stated petitioner “retained [the expert] to testify” and the 

expert “agreed to testify at trial.” First, City argues the declaration was inaccurate 

because there were discrepancies in the expert’s testimony regarding the date of 

retention.
10.

The expert testified at his deposition on August 16 that he had only been retained 

“a few weeks ago ....” However, in response to the question regarding the date of

retention, the expert also stated, “I don’t know... [when the formal retention happened]. 

I know it was sometime this year. How many weeks or months, I don’t recall.” The 

expert’s testimony was unclear as to when he believed he was retained, testifying to 

various dates ranging from “a few weeks,” “one month,” to “sometime this year.” Read 

as a whole, the expert did not recall the date he was retained.

Petitioner timely served the expert witness declaration, which identified the expert 

and his expected testimony. Petitioner secured a date to depose the expert and issued 

payment pursuant to the request soon thereafter. While the expert was unclear about the 

exact date of retention, allowing the expert to testify at trial would not frustrate the 

purpose of the expert witness discovery statute, “to give fair notice” of the expert’s 

opinions at trial. (Bonds v. Roy, supra, 20 Cal.4th at p. 146.)

Next, pursuant to section 2034.260, subdivision (c)(4), petitioner’s expert witness 

declaration stated the expert would be “sufficiently familiar with the pending action to 

submit to a meaningful oral deposition ....” City argues the expert was unprepared. As 

such, City contends petitioner’s declaration was false and grounds for exclusion of the 

expert’s testimony.

Section 2034.260, subdivision (c)(4) does not define the phrase “meaningful oral 

deposition.” Nor does section 2034.300, subdivision (d) define the phrase “[m]ake that 

expert available for a deposition ....” However, read in the context of the Civil 

Discovery Act (§ 2016.010 et seq.) governing the exchange of expert witness 

information, making an expert available for a “meaningful oral deposition” contemplates 

not merely assuring the expert is physically present at the deposition, but also that the 

expert will be prepared to give his or her substantive testimony, including the opinions 

the expert expects to give at trial. (Staub, supra, 226 Cal.App.4th at p. 1444 [the expert 

should be “‘sufficiently familiar with the pending action’” to provide deposition 
11.

testimony that includes the expert’s opinion and its basis, and the testimony the expert is 

expected to give at trial]; see § 2034.260, subd. (c)(4).) To that end, an expert’s 

testimony may be excluded if he is wholly unprepared for his deposition. (City of Fresno 

v. Harrison (1984) 154 Cal.App.3d 296, 301 [there was no abuse of discretion where the 

trial court excluded an expert who was made available for a deposition one month before 

trial and when the defendant deposed the expert he had not formed an opinion, looked 

over a significant portion of the data, or settled upon a method of evaluation, when it 

held, “‘[d]eposing’ an expert in front of a jury is time-consuming and unwise”].)

Here, the expert was not wholly unprepared. The expert formed an opinion as to 

the cause of petitioner’s injuries prior to his deposition. (McCoy v. Gustafson (2009) 180 

Cal.App.4th 56, 96–97 [the trial court can properly exclude testimony that goes beyond 

the opinions expressed at the expert’s deposition but allow the expert to testify as to the 

opinions formed at his deposition].) The expert offered his opinion at his deposition 

related to petitioner’s injuries, treatment, and causation of injury. He also provided the 

reasoning behind the surgery recommendations he provided petitioner. In forming his 

opinion, the expert testified he reviewed petitioner’s treatment records for the injury and 

predating the injury, which were summarized in his report. The expert also reviewed 

eight deposition transcripts, City’s expert’s report, and testified as to the reasons why he 

disagreed with City’s expert’s report.

City’s argument regarding the expert’s unpreparedness is based on testimony 

elicited at his deposition that the expert did “not [have] the time to review” certain 

records in the file. However, later in the deposition the expert testified he had spoken to 

the entirety of the opinions he would give at trial “[u]nless additional information is 

provided that I can review ....” This court already made clear that it would not disturb 

the trial court’s order excluding the expert’s additional opinions, ostensibly regarding 

future treatment, that were formed after the preparation of the expert’s report and 
12.

deposition. We find that the expert submitted to a meaningful deposition as to his 

opinions on treatment and causation of petitioner’s injuries at the time of the deposition.

2. Production of Expert Reports under Section 2034.300, Subdivision

(c)

City argues petitioner unreasonably failed to timely provide the expert’s report and 

file, warranting exclusion of the expert from testifying at trial. Petitioner responds that he 

did not unreasonably fail to provide the expert’s report; it was promptly provided to City 

when it was prepared.

Section 2034.300, subdivision (c) provides the trial court authority to exclude an 

expert witness where a party unreasonably fails to “[p]roduce reports and writings of

expert witnesses under Section 2034.270.” A discoverable report or writing includes one 

that is made “in the course of preparing [the] expert’s opinion.” (§ 2034.210, subd. (c).)

Section 2034.270 requires a party to produce an expert’s discoverable reports and 

writings only “if any” such document exists at the time of the expert exchange. Section 

2034.270 does not place any burden on a party who calls experts to prepare specially any 

such report or writing if none already exists. (Boston, supra, 170 Cal.App.4th at pp. 951–

952.)

The expert testified he prepared his opinions and finalized his report on 

August 12.3 City received the expert’s report on August 15. City deposed the expert on 

August 16. Production of the expert’s report was within three days of it becoming 

available. This was reasonable. (Boston, supra, 170 Cal.App.4th at p. 954 [a party’s 

prompt production of the expert report once received, along with an opportunity to 

depose the expert, supported the court’s conclusion that the petitioner had not 

unreasonably failed to produce the expert’s reports and writings].)

3The expert’s report is also dated August 12.
13.

City argues petitioner failed to comply with the deadline to produce the expert’s 

file imposed by section 2034.415,

4 prompting the cancellation of the initial deposition 

date of March 1. However, there was nothing to produce at this time; the report was not 

completed until August 12.

Courts have held the intentional withholding of reports is “unreasonable” and 

grounds for exclusion of the expert. (Boston, supra, 170 Cal.App.4th at p. 952 [if a court 

concludes a party “intentionally manipulated the discovery process” to ensure that expert 

reports were not created until after the specified exchange date, it may find the failure to 

produce them unreasonable and exclude the expert’s opinions].) There is no evidence of 

intentional withholding of the expert’s report. Once petitioner’s attorney received the 

report from the expert, it was given to City in three days. (Cf. Zellerino v. Brown (1991) 

235 Cal.App.3d 1097, 1116–1117 [failure to produce reports and writings on specified 

date unreasonable when the noncompliant party also produced late and incomplete expert 

witness information and refused to make experts available for deposition, in a 

“comprehensive attempt to thwart the opposition from legitimate and necessary 

discovery”].)

City also argues the expert should be excluded from testifying at trial because of 

petitioner’s failure to produce the expert’s billing and retention records, and 

correspondences between the expert and petitioner’s counsel, which City contends should 

have been disclosed as part of the expert file under section 2034.270. Petitioner concedes 

the billing and retention records, and communications between petitioner’s counsel and 

the expert were not produced prior to the expert’s deposition.

Section 2034.210, subdivision (c) does not define what constitutes “discoverable 

reports and writings” made by an expert “in the course of preparing [the] expert’s 

4This section governs production of documents in conjunction with taking an expert’s 

deposition. (§ 2034.215 [“[a]n expert ... whose deposition is noticed ... shall, no later than three 

business days before ... [the expert’s] deposition, produce any materials ... called for by the 

deposition notice”].)
14.

opinion.” Therefore, we turn to whether the failure to timely produce billing records, the 

retention agreement, and correspondences between the expert and petitioner amounted to 

“unreasonable” conduct.

When an expert witness is expected to testify, the expert’s report and writings are 

discoverable so that the opposing party is aware of the opinions and testimony the expert 

is expected to give at trial. (City of Fresno v. Harrison, supra, 154 Cal.App.3d at p. 301 

[“‘The discovery statutes are intended to safeguard against surprise’”].) The opportunity 

for a “meaningful deposition is one of the circumstances the trial court should consider”

when determining whether the offending party acted unreasonably in failing to produce 

an expert’s reports and writings, because a deposition allows the opposing party to 

explore the opinions and testimony of the expert witness. (Boston, supra, 170 

Cal.App.4th at p. 954.)

Here, City asked the expert during his deposition about his retention and billing. 

The expert testified regarding his hourly rate, setting forth his hourly rate for both expert 

deposition testimony and for his appearances in court. He also estimated the time he 

spent preparing for his deposition. As such, City may calculate an approximate total bill 

for the expert’s services from the answers elicited during the expert’s deposition. The 

expert also testified he had not provided petitioner’s counsel with a bill yet; he “usually 

[does] the billing later on after the trial.” The expert further testified he did not know if 

there was a written “retention agreement” and he would ask his staff for the agreement, 

billing, and retainer check. There was no objection by petitioner’s counsel to this 

testimony or any questions asked by City related to this subject matter. And as 

previously stated, a copy of the check securing the expert’s deposition testimony dated 

February 9 was provided to City after the expert’s deposition.

Taking into consideration the expert’s deposition testimony, the opportunity for 

defense counsel to depose the expert, and the “reasonableness determination”

surrounding section 2034.300, subdivision (c), we do not find the failure to produce the 
15.

expert’s billing, retention agreement, or communications between the expert and 

petitioner’s counsel unreasonable.

3. Expert Availability for a Deposition under Section 2034.300, 

Subdivision (d)

City argues petitioner unreasonably failed to make the expert available for a 

deposition pursuant to section 2034.300, subdivision (d), since the expert’s deposition 

was repeatedly rescheduled. Petitioner responds the expert submitted to a meaningful 

deposition six weeks before trial and his testimony should not be excluded.

As set forth ante, the phrase “[m]ake that expert available for a deposition”

requires the expert is physically present and substantively prepared, regardless of whether 

the other party takes the expert’s deposition. (Staub, supra, 226 Cal.App.4th at p. 1444; 

Boston, supra, 170 Cal.App.4th at p. 954.) Courts have held the exclusion of expert 

testimony is proper where there is no opportunity to depose the expert. (Cottini v. Enloe 

Medical Center (2014) 226 Cal.App.4th 401, 426 [“where the importance of discovery of 

experts is manifest,” allowing the plaintiff’s expert witnesses to testify without any 

ability for the defendant to depose the expert would be “the essence of unfair surprise”].) 

Similarly, in Zellerino v. Brown, supra, 235 Cal.App.3d 1097, the conduct being 

evaluated was a party’s production of late, incomplete, expert witness identification, no 

expert reports, and the complete refusal to make the expert available for a deposition. 

The appellate court held the exclusion of the expert was appropriate where the plaintiff 

“failed to comply with any of the requirements of the expert disclosure statute thereby 

frustrating the purposes of the discovery act.” (Id. at p. 1117.)

Courts have also upheld the exclusion of expert testimony where the expert failed 

to complete his deposition. (Waicis v. Superior Court (1990) 226 Cal.App.3d 283, 286.) 

The Waicis court excluded the expert from testifying when, after months of rescheduling, 

the expert walked out of the deposition early to attend to a personal meeting. (Ibid.) The 

appellate court affirmed the ruling and held the exclusion of the expert was to prevent 
16.

abuse of the expert discovery rules, but also acknowledged the plaintiff had other experts 

to testify on the same issues. (Id. at p. 288 & fn. 2.)

These cases are not analogous. Here, the expert submitted to a meaningful, twohour deposition. As previously addressed, the expert was familiar with petitioner’s 

treatment, had formed his opinion on causation of injury prior to the deposition, and 

offered his opinions and testimony on the same. Our conclusion is supported by the fact 

the trial court’s order excluding petitioner’s expert from testifying at trial is in effect a 

“terminating sanction.” (Staub, supra, 226 Cal.App.4th at p. 1448.) Petitioner does not 

have other experts to testify as to causation and damages. This case is not on a par with 

the type of case in which a sanction of this type is warranted. (E.g., Zellerino v. Brown, 

supra, 235 Cal.App.3d at p. 1117.)

DISPOSITION

The order granting the motion in limine excluding the expert’s testimony, insofar 

as it required exclusion of the expert’s causation and damages testimony, is reversed and 

the matter is remanded to the trial court with directions to vacate its order granting City’s 

motion to exclude the expert’s testimony regarding causation and damages and enter a 

new order denying that portion of City’s motion. The remainder of the trial court’s order 

remains undisturbed.

The stay of trial proceedings is lifted, and the parties shall each bear their own 

costs pursuant to rule 8.493(a)(1)(B) of California Rules of Court.

PEÑA, J.

WE CONCUR:

DETJEN, Acting P. J.

FRANSON, J.