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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NOT TO BE PUBLISHED 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 This opinion has not been certified for publication 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. 

COPY 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

GEORGE STAUB et al., 

 Plaintiffs and Appellants, 

 v. 

JAMES KILEY et al., 

 Defendants and Respondents. 

C071500 

(Super. Ct. No. 

34200800029754-

CUMMGDS) 

 Plaintiffs George and Julianne 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’ successful motion for nonsuit. 

 In this action for medical malpractice, the trial court granted defendants’ in limine 

motion precluding plaintiffs’ expert witnesses from testifying at trial, on the ground 

plaintiffs unreasonably failed to timely disclose their designated trial experts after 

receiving a statutory demand from defendants. (Code Civ. Proc., §§ 2034.220, 2034.300, 

2034.720; unless otherwise stated, statutory references that follow are to the Code of 
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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 Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118) and the 

trial court found plaintiffs were likewise precluded without designated experts from 

maintaining their causes of action for lack of informed consent and fraudulent 

concealment. 

 On appeal, plaintiffs argue the trial court erred in granting defendants’ in limine 

motion because (1) defendants themselves failed to comply with the expert disclosure 

demand requirements, and (2) the trial court erred in concluding plaintiffs acted 

unreasonably in disclosing their trial experts after “a minor and nonprejudicial 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 defendants 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 expert disclosure demand that their experts 

could be properly excluded from testifying. Accordingly, we reverse the judgment and 

order the matter reinstated. 

FACTS AND PROCEEDINGS

A. Pleadings and Overview of Plaintiffs’ Claims 

 The background facts are summarized from the first amended complaint. 

 We note that George Staub was the individual who received the allegedly 

negligent medical treatment by defendants. When 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. George was treated by Kiley, his 
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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 Syndrome, treatment of which must begin within a week 

or two of the first symptoms to be effective. This occurred even 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. Doctors there observed additional clotting extending 

in the left groin, but they did not test for May-Thurner Syndrome. 

 Doctors at Stanford Hospital tested George and discovered he suffered from MayThurner Syndrome in January 2009, when it was 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 action against Kiley and others for medical malpractice, 

alleging that defendants’ failure to properly 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, arguing no triable issues of care exist 

relative to his liability. He submitted the declaration 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 motion and submitted the declaration 

of their own medical expert, Dr. Kang, who opined Kiley overlooked numerous aspects 

of George’s medical history suggesting the presence of May-Thurner Syndrome, and 

breached the standard of care by not following the specialist’s advice in May 2008 to rule 

out May-Thurner Syndrome when it would have still been treatable. The trial court 
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denied Kiley’s motion for summary judgment, and concluded Kiley’s expert witness 

declaration was “patently inadequate” 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 concealment, based on Kiley’s alleged failure to 

inform George that he consulted with a specialist in May 2008 who advised Kiley to test 

for May-Thurner Syndrome, and (2) a claim for lack of informed consent, based on 

Kiley’s alleged failure to inform 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 Syndrome, so that he might make an informed 

choice to request such testing and treatment. 

 Defendants answered the first amended complaint, and trial was set for 

February 14, 2012. 

B. Defendants’ Demand for Expert Exchange, Motion in Limine, and Motion 

 for Nonsuit 

 On December 6, 2011, defendants served by mail a demand for exchange of expert 

witness information pursuant to section 2034.210, and set the disclosure date for 

December 27, 2011. In accordance with the date specified in their demand, defendants 

served their exchange of expert witness information on December 27, 2011. 

 Plaintiffs, however, did not serve their exchange 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, although 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. Fullerton and Ley as their expert trial witnesses; 

they did not identify Dr. Kang, whose declaration had been submitted in opposition to 

summary judgment. 
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 The same week, plaintiffs served a notice 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 sent 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 expert witness disclosure. Two days later, 

defendants moved unsuccessfully 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, attorney 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 plaintiffs’ disclosure of experts was 

untimely, plaintiffs failed to seek relief from the delay, and plaintiffs’ current offer of 

depositions did not meet the statutory requirements. Moreover, defendants asserted they 

had been “severely prejudiced” because such late depositions would not permit the 

Regents to engage in their customary process of evaluating settlement options by 

committee. 

 On the day set for trial, defendants moved in limine to preclude plaintiffs from 

presenting any expert witness testimony at trial. They argued the order was justified by 

plaintiffs’ tardy disclosure of expert witnesses and their failure to seek leave from the 

court to make a belated disclosure. According 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 discovery cutoff, or in sufficient time to allow transcripts of 

their testimony to be prepared for evaluation by defense experts and the Regents, who act 

by committee. Moreover, defendants complained, Elstead had previously engaged in 

improper behavior in this case by misrepresenting to the court when he learned the 
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identity of Kiley’s employer and he was disciplined by the State Bar in unrelated cases in 

2005 and 2011. 

 Plaintiffs filed an “opposition 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 prejudiced 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 late. And, after the 

exchange, defendants never attempted to schedule the two named experts’ depositions, 

and declined plaintiffs’ offer making them available for deposition. Defendants cannot 

be surprised about what the experts will say, plaintiffs argued, given the extensive oral 

and written discovery defendants have conducted, and the facts developed during Kiley’s 

summary judgment motion. 

 Attorney Elstead denied he acted willfully to obstruct discovery and submitted a 

declaration explaining his “unusual difficulty” and “unavoidable delay” locating and 

retaining experts Drs. Fullerton and Ley. Elstead determined in November 2011 to retain 

Fullerton (rather than Dr. Kang) 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 did not obtain until January 9, 2012. 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. Elstead explained that his unavailability was 

caused when his brother unexpectedly required cancer treatment and amputation surgery; 

under all the circumstances, the week-long delay in expert disclosure was not 

unreasonable. Plaintiffs also decried defendants’ efforts to influence the court by 

disparaging attorney Elstead, who stated his 2005 and 2011 discipline was the result of 

his paralegal’s misconduct. 

 Following an unrecorded hearing, the trial court granted defendants’ motion in 

limine to preclude plaintiffs from presenting expert testimony at trial. 
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 Defendants filed motions for nonsuit (the original and an amended motion), on the 

grounds plaintiffs’ lack of expert witness 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 precluding their introduction of expert testimony or, 

alternatively, for a continuance to seek relief by writ of mandamus to compel the trial 

court to deny defendants’ in limine motion to exclude plaintiffs’ 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 writ 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 the trial court could rule on defendants’ motion 

for nonsuit based upon plaintiffs’ presentation of an exemplar anticipated opening 

statement. After receiving plaintiffs’ exemplar opening statement and defendants’ 

objections thereto (and having received no request for oral argument), the trial court 

granted defendants’ request for nonsuit in its entirety and entered judgment in 

defendants’ favor. 

DISCUSSION

I 

General Principles and the Standard of Review 

 The statutes governing expert witness discovery 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 claims and defenses; to expedite and facilitate 
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preparation and trial; to prevent delay; and to safeguard against surprise.’ [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 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)). 

 A party demanding an expert witness exchange “may also include a demand for 

the mutual and simultaneous production for inspection and copying of all discoverable 

reports and writings, if any, made by any expert . . . in the course of preparing that 

expert’s opinion.” (§ 2034.210, subd. (c).) When, as here, 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 who has made a complete and 

timely compliance with Section 2034.260 [concerning method and content of exchange], 

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. . . .” 
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 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 with an expert witness demand. (Boston, supra, 170 Cal.App.4th at 

p. 952.) A trial court’s discretion is always delimited by the statutes governing the 

particular issue but when the exclusion of expert testimony rests on a matter of statutory 

interpretation, we undertake a de novo review. (Id. at p. 950; Tesoro del Valle Master 

Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 639.) 

II 

The Trial Court Erred in Granting 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 themselves failed to “ma[k]e a complete and 

timely compliance” with the exchange procedures of section 2034.260. Plaintiffs are 

correct. 

 Section 2034.230, subdivision (b) states the date on which an expert witness 

demand may require the information to be exchanged: “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 the 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 when the demand or notice is served by mail within the state, 

as here. 

 Although we are unaware of any case authority explaining the 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 within 
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California, 10 days outside state, etc.). With that extension, the exchange date may be 

closer to trial than 50 days, leaving less time to complete expert discovery.” (Weil & 

Brown, Cal. Practice Guide: Civil Procedure 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 required by section 2034.260. In fact, the same treatise 

suggests that the effect of such miscalculation of the disclosure 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 not include the extension required for service 

by mail). The court clearly has the power, upon motion for protective order, to change 

the date for the exchange [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 2034.300 to seek to preclude plaintiffs’ expert witnesses 

from testifying at trial. Only a party that has itself “made a complete and timely 

compliance with Section 2034.260” may seek to exclude his opponent’s experts for the 

opponent’s unreasonable failure to comply with expert discovery. (Cf. West Hills 

Hospital v. Superior Court (1979) 98 Cal.App.3d 656, 660 [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 disclosure failures].) 

 Even if defendants did have standing to bring a section 2034.300 motion, plaintiffs 

cannot be said to have unreasonably failed to comply with defendants’ expert witness 

demand, so as to justify excluding plaintiffs’ experts’ testimony. Although 

section 2034.300 does not provide explicit guidance as to how a court should decide if 

the party’s failure was reasonable or unreasonable, the record does not support the trial 
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court’s implicit conclusion that plaintiffs behaved so unreasonably as to warrant 

exclusion of their experts’ opinion testimony. 

 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. (Stanchfield v. Hamer Toyota, 

Inc. (1995) 37 Cal.App.4th 1495, 1504.) 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.” (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 production of late, incomplete expert witness information, 

coupled with refusal to make the experts available for deposition. Collectively, this 

conduct amounted to “a comprehensive attempt to thwart the opposition from legitimate 

and necessary discovery,” justifying exclusion of evidence. (Id. at p. 1117; see also 

Boston, supra, 170 Cal.App.4th at p. 952 [if 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 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 that 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 legitimate and necessary discovery,” justifying exclusion of 

evidence. (Cf. Zellerino, supra, 235 Cal.App.3d at p. 1117.) Plaintiffs’ counsel averred 
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he did not determine to change experts (from Kang to Fullerton and Ley) until 

November 2011, but then had difficulty reaching them over 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 exchange 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 [the opportunity for meaningful deposition is one of the 

circumstances the trial court should consider when making the reasonableness 

determination].) While counsel’s late arrangements for experts are not evidence of an 

ideal practice, they do not show an attempt to thwart defendants’ discovery. 

 Defendants’ actions, including their refusal 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 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 at p. 954.) 

 Any unfairness arising from plaintiffs’ tardy expert disclosure was exacerbated by 

defendants’ refusal to depose plaintiffs’ experts. 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 exclude plaintiffs’ experts from testifying. We do not agree 

that a party’s ability to conform to its preferred decision making process necessarily 

excuses its refusal of a deposition 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 either reject plaintiffs’ offer to depose their 
13 

witnesses or to argue in favor of excluding 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 plaintiffs’ experts pursuant to section 2034.300. 

 Our conclusion in this regard is bolstered by the fact that the order excluding 

plaintiffs’ experts from testifying at trial was 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 abuse 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 the other contentions of 

error raised by plaintiffs. 

DISPOSITION

 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.