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Basco v. Tishgart6/14/2005
taken the depositions. There was no blind-siding. There was no prejudice."
Appellant did not and does not claim actual prejudice. Instead, citing Bonds v. Roy (1999) 20 Cal.4th 140, appellant argued "there is no requirement that we need to bring this to plaintiff's counsel's attention. There's also similarly no requirement that prejudice needs to be shown." The court ruled that "The defendant's supplemental Motion in Limine to Preclude Expert Testimony on Behalf of Plaintiff is denied. The Court cannot find unreasonable failure in this case." Appellant contends this denial was error.
Respondent initially argues we need not reach the merits of this argument "because the appellate record contains neither Basco's expert witness disclosure nor Tishgart's in limine motion." This is true enough, but we do have the parties' oral argument and the trial court's ruling. In arguing against the motion respondent's counsel essentially conceded that his expert witness declaration was technically defective in two respects. However, he argued that appellant had been provided with the names of respondent's experts and the substance of their expected testimony. On this latter point, appellant did not disagree with counsel's representation. The gist of the dispute can be ascertained from this record. The issue before us is whether the trial court acted within its discretion when it declined to order the sanction of witness preclusion requested by respondent.
The governing statute provides in pertinent part: "All parties . . . shall exchange information concerning expert witnesses in writing . . . . [ ] . . . The exchange of expert witness information shall include . . . [ ] . . . A list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial. [ ] . . . [ ] he exchange shall also include or be accompanied by an expert witness declaration signed only by the attorney for the party designating the expert . . . . This declaration shall be under penalty of perjury and shall contain: [ ] . . . [ ] A brief narrative statement of the general substance of the testimony that the expert is expected to give." (Code Civ. Proc., ยง 2034, subd. (f).) " n objection of any party . . ., 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: [ ] . . . [ ] (2) Submit an expert witness declaration . . . ." (Id., subd. (j).)
The issue in Bonds v. Roy, supra, 20 Cal.4th 140, was whether, once an expert witness declaration was submitted, the expert could testify about other matters that were not disclosed. The Supreme Court held that because the party seeking to elicit the expanded testimony had made no attempt to amend his witness declaration-as permitted by Code of Civil Procedure section 2034, subdivision (k)-the trial court did not err in excluding testimony on the undisclosed subjects. (Bonds v. Roy, supra, at pp. 148-149.) Implicit in this discussion, and in light of the statute's language that the sanctioned party has acted "unreasonably," is a recognition that the trial court retains discretion to determine whether the sanction is appropriate. This is consistent with established authority that discovery sanctions are reviewed according to the demanding abuse of discretion standard. (E.g., Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431-432; Foothill Properties v. Lyon/Copley Corona Associates (1996) 46 Cal.App.4th 1542, 1557.) The precise issue before us is whether appellant has demonstrated that the trial court here abused that discretion when it denied appellant's motion to exclude all of respondent's proposed expert testim
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