1 Filed 5/20/14 Staub v. Kiley CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT (Sacramento)

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GEORGE STAUB et al., Plaintiffs and Appellants,

v. JAMES KILEY et al., Defendants and Respondents. C071500 (Super. Ct. No. 34200800029754- CUMMGDS)

Plaintiffs George and Julia nne Staub appeal pro se from the judgment entered in
favor of defendants James M. Kiley (Kiley) and Regents of the University of California (Regents) following defendants’ su ccessful motion for nonsuit. In this action for medical malpractice, th e trial court granted defendants’ in limine motion precluding plaintiffs’ e xpert witnesses from testifyi ng at trial, on the ground plaintiffs unreasonably failed to timely disc lose their designated trial experts after receiving a statutory demand from defendants. (Code Civ. Proc., §§ 2034.220, 2034.300, 2034.720; unless otherwise stated, statutory re ferences that follow are to the Code of2 Civil Procedure.) Without designated experts, plaintiffs could not address at trial the element of causation of injury from the alleged medical negligence (see Jennings v.
Palomar Pomerado He alth Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118) and the trial court found plaintiffs were likewise precluded without de signated experts from maintaining their causes of action for l ack of informed consent and fraudulent
concealment. On appeal, plaintiffs argue the trial c ourt erred in granting defendants’ in limine motion because (1) defendants th emselves failed to comply with the expert disclosure demand requirements, and (2) the trial cour t erred in concluding plaintiffs acted unreasonably in disclosing their trial expert s after “a minor and no nprejudicial delay.” Finally, plaintiffs contend that, even if the court refused to allow their designated experts to testify, it should have allowed trial to proceed on the cause of action for “informed
refusal.” We agree with plaintiffs that defendant s lacked standing to move to exclude plaintiffs’ experts from testifying at trial, and the trial court erred in concluding plaintiffs so unreasonably failed to comply with the e xpert disclosure demand that their experts could be properly excluded from testifying. Accordingly, we reverse the judgment and
order the matter reinstated.

F ACTS A ND P ROCEEDINGS A. Pleadings and Overview of Plaintiffs’ Claims The background facts are summarized from the fi rst amended complaint. We note that George Staub was the individual who received the allegedly negligent medical treatment by defendants. Wh en referring to those events, we refer to George by his first name. In May 2008, George was admitted to Mercy Hospital of Folsom with pain and swelling in his left leg and severe pain in his left groin. Ge orge was treated by Kiley, his3 primary care physician. Although George was diagnosed with deep vein thrombosis, no ultrasound or other procedure was performed which would have revealed a presence of a condition called May-Thurner Sy ndrome, treatment of which must begin within a week or two of the first symptoms to be effec tive. This occurred ev en though Kiley was informed by a specialist that the likely cause of George’s pain was May-Thurner Syndrome, a fact he did not share with George. George was discharged over his objection and continued to experience pain; Kiley never ordered an ultrasound or other procedure to determine whether the cause of the pain was May-Thurner Syndrome. In June 2008, George saw another physician and an ultrasound was performed at Regents’ UC Davis Medical Center. Doctor s there observed additio nal clotting extending in the left groin, but they did no t test for May-Thurner Syndrome. Doctors at Stanford Hosp ital tested George and disc overed he suffered from MayThurner Syndrome in January 2009, when it wa s too late for treatment. He now must take anticoagulants for the rest of his life and his pain and symptoms will never resolve.
Plaintiffs initiated this ac tion against Kiley and others for medical malpractice, alleging that defendants’ failure to proper ly treat George caused his extensive and permanent injuries. They also stated a cause of action for loss of consortium, based on
the effect of defendants’ actions on Julianne. Kiley moved for summary judgment, ar guing no triable issues of care exist relative to his liability. He submitted the d eclaration of a licensed physician specializing in vascular surgery who opined that the medical care rendered to George by Kiley was
within the standard of care. Plaintiffs opposed the motio n and submitted the declaration of their own medical expert, Dr. Kang, who opined Kiley overlooked numerous aspects of George’s medical history suggesting th e presence of May-Thurner Syndrome, and breached the standard of care by not following the specialist’s a dvice in May 2008 to rule out May-Thurner Syndrome when it would have still been tr eatable. The trial court4 denied Kiley’s motion for summary judgment, and concluded Kiley’s expert witness declaration was “patently inad equate” and conclusory.
Plaintiffs obtained leave to file a first amended complaint and, in February 2011, they added the Regents (Kiley’s employer) as a defendant and added two causes of action against Kiley: (1) a claim for fraudulent c oncealment, based on Kiley’s alleged failure to inform George that he consulted with a spec ialist in May 2008 who a dvised Kiley to test for May-Thurner Syndrome, and (2) a claim for lack of in formed consent, based on Kiley’s alleged failure to info rm George that a specialist in May 2008 advised Kiley to test for May-Thurner Syndrome, and failed to advise George of the dangers of failing to test for, and timely treat, May-Thurner Syndro me, so that he might make an informed choice to request such testing and treatment.
Defendants answered the first amende d complaint, and trial was set for February 14, 2012. B. Defendants’ Demand for Expert Ex change, Motion in Limine, and Motion
for Nonsuit On December 6, 2011, defe ndants served by mail a dema nd for exchange of expert witness information pursuant to section 20 34.210, and set the disclosure date for December 27, 2011. In accordance with the date specifi ed in their demand, defendants served their exchange of expert witness information on December 27, 2011. Plaintiffs, however, did not serve their exch ange of expert information on the date specified in defendants’ demand. The proof of service attached to their response states it was served by mail on January 9, 2012, a lthough defendants later averred it was postmarked January 13 and they received it by fax on January 12 and by mail on January 14. Plaintiffs identified Drs. Fullert on and Ley as their expert trial witnesses; they did not identify Dr. Kang, whose decl aration had been subm itted in opposition to summary judgment.5 The same week, plaintiffs served a notic e that due to a family emergency their attorney, Mr. Elstead, would be unavailable between January 14 and January 27, 2012, but could be reached by e-mail or telephone. Elstead also se nt a letter to defendant’s counsel stating that a family emergency would keep him out of the office until January 27, 2012. Defendants objected to plaintiffs’ tardy ex pert witness disclosure. Two days later,
defendants moved unsuccessfu lly ex parte to shorten time on a motion to preclude plaintiffs from calling any expert witnesses at trial. No documents related to defendants’ ex parte motion are in the appellate record. On February 2, 2012, attorn ey Elstead faxed a letter to defense counsel stating that plaintiffs’ experts would be available the following week for deposition. Defendants declined the offer the same day. They responded that plainti ffs’ disclosure of experts was untimely, plaintiffs failed to seek relief from the delay, a nd plaintiffs’ current offer of depositions did not meet the statutory requir ements. Moreover, defendants asserted they had been “severely prejudiced” because su ch late depositions would not permit the Regents to engage in thei r customary process of evaluating settlement options by
committee. On the day set for trial, defendants move d in limine to preclude plaintiffs from presenting any expert witness testimony at tria l. They argued the order was justified by plaintiffs’ tardy disclosure of expert witnes ses and their failure to seek leave from the
court to make a belated disclosure. Accord ing to defendants, given attorney Elstead’s limited availability, the depositions of two new, belatedly-disclosed experts could not be taken prior to the 15-day disc overy cutoff, or in sufficient time to allow transcripts of their testimony to be prepared for evaluation by defense expe rts and the Regents, who act by committee. Moreover, defendants complain ed, Elstead had previously engaged in improper behavior in this case by misrepre senting to the court when he learned the6 identity of Kiley’s employer and he was discip lined by the State Bar in unrelated cases in
2005 and 2011. Plaintiffs filed an “oppos ition to motion in limine to exclude expert testimony and
motion to deem late disclosure reasonable,” arguing that their late expert disclosure was not unreasonable and had not pr ejudiced defendants. They argued the time to disclose experts had been extended by five days from the stated exchange date by operation of section 1013; consequently, their actual exchange was only one week la te. And, after the exchange, defendants never attempted to schedule the tw o named expert s’ depositions, and declined plaintiffs’ offer making them available for deposition. Defendants cannot be surprised about what the experts will say, plaintiffs argued, give n the extensive oral and written discovery defendants have conducte d, and the facts developed during Kiley’s summary judgment motion. Attorney Elstead denied he acted willfully to obstr uct discovery and submitted a declaration explaining his “unusual difficu lty” and “unavoidable delay” locating and retaining experts Drs. Fullerton and Ley. Elstead determined in November 20 11 to retain Fullerton (rather than Dr. Ka ng) to opine on the standard of care, but the subsequent holidays delayed Elstead’s work with Fullerton necessary to secure Fullerton’s agreement to testify, which Elstead di d not obtain until January 9, 2 012. Dr. Ley, who lives in Idaho, was travelling in Spain for several months and was unreachable; Dr. Ley did not agree to testify until January 8, 2012. El stead explained that his unavailability was caused when his brother unexpectedly required cancer treatment and amputation surgery; under all the circumstances, the week-lon g delay in expert disclosure was not
unreasonable. Plaintiffs also decried defe ndants’ efforts to in fluence the court by disparaging attorney Elstead, who stated his 2005 and 2011 discipline was the result of his paralegal’s misconduct. Following an unreco rded hearing, the tr ial court granted defendants’ motion in limine to preclude plaintiffs from pres enting expert testimony at trial.7 Defendants filed motions for nonsuit (the original and an amended motion), on the grounds plaintiffs’ lack of expert witne ss testimony prevented them from establishing a prima facie case on any cause of action. Plaintiffs opposed the motions for nonsuit, and moved separately for reconsideration of the court’s order precludi ng their introduction of expert testimony or, alternatively, for a continua nce to seek relief by writ of mandamus to compel the trial court to deny defendants’ in limine motion to exclude plain tiffs’ expert witnesses. Following a hearing, the trial court denied plaintiffs’ motion for reconsideration of its prior decision to preclude their presentation of expert witnesses. The court granted their request for a temporary stay to seek wr it relief, which was ultimately denied. ( Staub v. Superior Court , Mar. 12, 2012 , C070544.) Thereafter, pursuant to stipulation of the parties and to save the time and expense of selecting a jury, the parties agreed that th e trial court could rule on defendants’ motion for nonsuit based upon plaintiffs’ presenta tion of an exemplar anticipated opening statement. After receiving plaintiffs’ ex emplar opening statem ent and defendants’ objections thereto (and having received no request for oral argum ent), the trial court granted defendants’ request for nonsuit in its entirety and entered judgment in
defendants’ favor.

DISCUSSION

I
General Principles and th e Standard of Review The statutes governing expert witness di scovery are part of the Civil Discovery Act. (§ 2016.010 et seq.) “The purposes of the discovery statutes are ‘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 clai ms and defenses; to e xpedite and facilitate8 preparation and trial; to prevent delay; and to safeguard against surp rise.’ [Citation.]” ( Boston v. Penny Lane Centers, Inc . (2009) 170 Cal.App.4th 936, 950 ( Boston ).) The expert witness exchange is triggered by a timely written demand made by any party after the initial trial date is set. (§ 2034.220.) Section 20 34.260 sets forth the general requirements for the exchange an d 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 fort h the expert’s qualifications (§ 2034.260, subd. (c)(1)), the expected natu re of the testimony (§ 2034 .260, subd. (c)(2)), and “[a] representation that the expert will be suffi ciently familiar with the pending action to submit to a meaningful oral deposition conc erning the specific testimony, including any opinion and its basis, that the expert is expe cted to give at trial” (§ 2034.260, subd. (c)(4)). A party demanding an expert witness ex change “may also include a demand for the mutual and simultaneous production for inspection and copying of all discoverable reports and writings, if any, ma de by any expert . . . in the course of preparing that expert’s opinion.” (§ 2034 .210, subd. (c).) When, as he re, a demand for documents is made, “all parties shall produce and exchange, at the place and on the date specified in the demand, all discoverable reports and writings , if any, made by any designated expert. . . .” (§ 2034.270.) Failure to comply with these requirements can have drastic consequences. Section 2034.300 provides, “[O] n objection of any party w ho has made a complete and timely compliance with Section 2034.260 [conc erning method and content of exchange],
the trial court shall exclude from evidence the expert opin ion of any witness that is offered by any party who has un reasonably 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. . . .”9 We generally review the trial court’ s ruling on a motion to exclude expert testimony for abuse of discretion, including its determination that a party “unreasonably” failed to comply w ith an expert witness demand. ( Boston, supra , 170 Cal.App.4th at p. 952.) A trial court’s discretion is al ways delimited by the st atutes governing the particular issue but when the exclusion of ex pert testimony rests on a matter of statutory interpretation, we undertak e a de novo review. ( Id . at p. 950; Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.Ap p.4th 619, 639.)

II

The Trial Court Erred in Gr anting Defendants’ Motion to Exclude Plaintiffs’ Experts From Testifying at Trial
Plaintiffs first contend defendants lacked standing to seek to exclude the testimony of plaintiffs’ experts because defendants th emselves failed to “ma[k]e a complete and timely compliance” with the exch ange procedures of section 2034.260. Plaintiffs are

correct. Section 2034.230, subdivis ion (b) states the date on which an expert witness demand may require the information to be exch anged: “The specified date of exchange shall be 50 days before the initial trial date , or 20 days after service of the demand,
whichever is closer to the trial date” unless th e trial court has found good cause to modify the exchange date. The Civil Discovery Act expressly provides that the five-day extension allowed by section 1013 applies to all discovery methods contemplated by the Act (§ 2016.050); section 1013 , subdivision (a) provides that the time for performing any act is extended by five days wh en the demand or notice is serv ed by mail within the state,
as here. Although we are unaware of any case au thority explaining th e operation of these statutes together, a leading treatise states: “[I]f an expert witness demand is served by mail, the exchange date must be extended accordingly (i .e., 5 days for mail within10 California, 10 days outside stat e, etc.). With that extensi on, the exchange date may be closer to trial than 50 days, leaving less ti me to complete expert discovery.” (Weil & Brown, Cal. Practice Guide: Civil Procedur e Before Trial (The Rutter Group 2013) ¶ 8:1649.2-8:1649.3, p. 8J-7.) Defendants’ demand failed to extend the exchange date by five days by operation of section 1013; the exchange date should have been January 2, 2012. Defendants’ demand to exchange on December 27, 2011, was “premature” and did not comply with the timing re quired by section 2034.260. In fact, the same treatise suggests that the effect of su ch miscalculation of the disclo sure date might invalidate the
demand: “ Effect of premature date? A problem arises where the demand specifies a premature date for the exchange (e.g., does no t include the extension required for service by mail). The court clearly has the power, up on motion for protective order, to change
the date for the ex change [citation]. Absent court intervention, it is not clear whether specifying a premature date invalidates the demand .” (Italics added, Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra , 8:1649.4, p. 8J-7.) Under these circumstances, plaintiffs are correct that defendants lacked standing to bring a motion under section 20 34.300 to seek to preclude plaintiffs’ expert witnesses from testifying at trial. Only a party th at has itself “made a complete and timely compliance with Secti on 2034.260” may seek to exclude his opponent’s experts for the opponent’s unreasonable failure to co mply with expert discovery. (Cf. West Hills Hospital v. Superior Court (1979) 98 Cal.App.3d 656, 6 60 [applying prior version of Civil Discovery Act, suggests a party not in strict compliance with expert disclosure requirements does not have standing to object to other party’s expert disc losure failures].) Even if defendants did have standing to br ing a section 2034.300 motion, plaintiffs cannot be said to have unreasonably failed to comply with defend ants’ expert witness demand, so as to justify excluding plai ntiffs’ experts’ testimony. Although section 2034.300 does not prov ide explicit guidance as to how a court should decide if the party’s failure was reasonable or unreason able, the record does not support the trial11 court’s implicit conclusion that plaintiffs behaved so unreasona bly as to warrant exclusion of their expert s’ opinion testimony. Failure to comply with expert de signation rules may be found to be “unreasonable” when a party’s conduct gives the appearance of ga mesmanship, such as undue rigidity in responding to expert scheduling issues. ( Stanchfield v. Hamer Toyota,
Inc . (1995) 37 Cal.App.4th 1495, 1504.) The operative inquir y 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 as certaining 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 dela y; and to safeguard against surprise.” ( Id. at p. 1504 [holding that the court did not abuse its discretion in allowing expert testimony].)
In Zellerino v. Brown (1991) 235 Cal.App.3d 1097 ( Zellerino ), the conduct being evaluated was a party’s produc tion of late, incomplete e xpert witness information, coupled with refusal to make the experts available for de position. Collectively, this conduct amounted to “a compre hensive attempt to thwart the opposition from legitimate and necessary discovery,” justif ying exclusion of evidence. ( Id. at p. 1117; see also Boston, supra , 170 Cal.App.4th at p. 952 [if c ourt concludes a party “intentionally manipulated the discovery process” to ensure that expert reports were not created until after the specified exchange date, it ma y find the failure to produce them was unreasonable and exclude the expert’s opinions].)
The record here does not support a determination that plaintiffs so unreasonably failed to timely disclose their experts th at exclusion of all expert testimony was warranted. Neither plaintiffs nor their counsel engaged in actions that can be characterized as gamesmanship nor did they engage in a “comprehensive attempt to thwart the opposition from leg itimate and necessary discovery,” justifying exclusion of evidence. (Cf. Zellerino, supra , 235 Cal.App.3d at p. 1117.) Plaintiffs’ counsel averred12 he did not determine to change experts (from Kang to Fullerton and Ley) until November 2011, but then had difficulty reaching them ove r the December 2011 holidays and as a result of Ley’s travelling in Spain, and was not able to designate them until after the first week in January 2012 ; close to two weeks after exch ange date contained in the demand. Moreover, shortly after the exchange , plaintiffs offered to make the experts available for deposition, an offer defendants promptly declined. ( Boston, supra , 170 Cal.App.4th at p. 954 [t he opportunity for meaningful deposition is one of the
circumstances the trial court should co nsider when making the reasonableness determination].) While counse l’s late arrangements for experts are not evidence of an ideal practice, they do not show an atte mpt to thwart defendants’ discovery. Defendants’ actions, including their refusa l to depose plaintiffs’ experts, are not
irrelevant. “The behavior of the party seeking to exclude the expert testimony is relevant to the reasonableness inquiry. If any unfairne ss arising from the proffering party’s late or incomplete disclosure was ex acerbated by the party seeking exclusion, the court is less likely to find the conduct of the party offe ring the expert to be unreasonable.” ( Boston,

supra , 170 Cal.App.4th at p. 954.) Any unfairness arising from plaintiffs’ tar dy expert disclosure was exacerbated by defendants’ refusal to depose plaintiffs’ expe rts. Defendants made a strategic choice not to depose plaintiffs’ experts on the grounds the disclosure was late and depositions so
close to the trial date would not permit the Regents to engage in their customary process of evaluating settlement options by committee; defendants made the same argument in support of their motion to ex clude plaintiffs’ experts from testifying. We do not agree that a party’s ability to conform to its pr eferred decision making process necessarily excuses its refusal of a depos ition offer; further, we are certain it does not weigh in favor of finding plaintiffs’ actions “unreasonable” so as to exclude their experts’ testimony. And the Regents’ preferred decision making process plainly provides no ground for Kiley, the individual physician defendant, to e ither reject plaintiffs’ offer to depose their13 witnesses or to argue in favor of excludin g plaintiffs’ experts, as he had no decision making process with which to conform. In light of the foregoing, we conclude the trial court abused its discretion in sustaining the defendants’ objection to plainti ffs’ experts pursuant to section 2034.300. Our conclusion in this regard is bols tered by the fact that the order excluding plaintiffs’ experts from testifying at trial wa s in effect a terminating sanction, as it eviscerated plaintiffs’ case. The “general rule [is] that a terminating sanction may be imposed only after a party fails to obey an order compelling discovery . . . .” ( New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1426.) Here, there was no history of discovery abus e by plaintiffs which would warrant the imposition of a terminating sanction. This case is not remotely on a par with the type of case in which a sanction of this type is warranted. (Compare, Zellerino, supra, 235 Cal.App.3d at p. 1117 [“near-total failure” to comply with requirements of expert disclosure statute].) Having concluded the trial court abused its discretion in finding plaintiffs unreasonably failed to disclose their experts, we need not address th e other contentions of error raised by plaintiffs.

D ISPOSITION The judgment is reversed with directions to reinstate the action. Plaintiffs shall recover their costs on appeal.

HULL , J.

We concur:

BLEASE , Acting P. J.

DUARTE , J.