Mediation Message No. 130


Perry v. Bakewell Hawthorne, LLC (Cal. Supreme Court Feb. 2017) no. S233096, 2017 Cal. LEXIS 1351 holds that the exclusionary rule for expert witness declarations that do not meet disclosure requirements applies to summary judgment as well as the trial phase. The case is also a valuable reminder about the importance of admissible evidence at MSJs and the remedies available when an expert disclosure is late or needs to be amended or augmented.

In Perry, a defendant moved for summary judgment as to the plaintiff’s claim that he had been injured in a fall on property owned by one defendant and leased by another. The plaintiff made no disclosure to a demand for an exchange of expert witness information. In response to a defendant’s MSJ, however, he submitted the declarations of two experts who opined that the stairs he fell on were in disrepair and did not comply with building code and industry standards. The trial court sustained the moving defendant’s objection to the introduction of these declarations because the plaintiff had failed to disclose those experts. Summary judgment was granted and the California Supreme Court affirmed the appellate court’s affirmance of that order.

Noting that the C.C.P.’s exclusionary rule for the failure to respond to an expert witness disclosure demand does not mention the summary judgment stage, Perry observed that “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.”

Perry also provides a tutorial for those situations where a party seeks either to augment an expert witness list, amend an expert’s declaration or has failed to respond to a disclosure demand. It reminds that a party may move under section 2034.610 to augment an expert witness list or amend an expert’s declaration, which the court may permit if section 2034.620’s several conditions are met. Similarly, an untimely disclosure may be allowed under section 2034.710 if the statutory conditions in section 2034.720 are satisfied. “(T)hese remedies are available to a party before summary judgment, and should be invoked as soon as the party discovers the need to submit a declaration by a previously undisclosed expert. Unless the court grants relief, the declaration contains inadmissible evidence, excludable upon objection if the failure to disclose was unreasonable.”

Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067
(310) 201-0010

Copyright Michael D. Marcus, February 2017

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