Cottini v. Enloe Medical Center , 172 Cal. Rptr. 3d 4 ( 2014 )


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  • Filed 5/21/14
    CERTIFIED FOR PARTIAL PUBLICATION*
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    THIRD APPELLATE DISTRICT
    (Butte)
    ----
    PATRICK COTTINI,
    Plaintiff and Appellant,                           C068915
    v.                                                   (Super. Ct. No. 143355)
    ENLOE MEDICAL CENTER,
    Defendant and Respondent.
    APPEAL from a judgment of the Superior Court of Butte County, Barbara L.
    Roberts, Judge. Affirmed.
    Bohm Law Group, Lawrance A. Bohm, Bianca N. Saad; Law Offices of
    Joseph M. Earley III and Joseph M. Earley III for Plaintiff and Appellant.
    Horvitz & Levy, Frederic D. Cohen; LaFollette Johnson, DeHaas, Fesler & Ames,
    Julie Clark Martin and Eric S. Boorstin for Defendant and Respondent.
    Plaintiff Patrick Cottini appeals from a judgment entered in favor of Enloe
    Medical Center (Enloe) after the jury found one or more Enloe employees provided
    negligent care to Cottini, a dependent adult, while he was in Enloe’s care or custody, but
    *       Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
    certified for publication with the exception of part IV of the discussion.
    1
    no causation. The critical question we must resolve is whether or not the trial court, on
    the objection of a party who has made a complete but untimely compliance with the
    expert witness exchange requirements of Code of Civil Procedure section 2034.260,1 has
    the authority to exclude from evidence expert testimony offered by a party who has
    completely and unreasonably failed to comply with these same requirements prior to the
    discovery cutoff date. We answer this question in the affirmative.
    The relevant facts, as set forth in detail below, are the following. Neither Cottini
    nor Enloe disclosed information concerning its expert trial witnesses by the date specified
    in Enloe’s demand for exchange of this information. Rather than disclose his experts on
    this date, Cottini brought a motion to disqualify the law firm of LaFollette, Johnson, De
    Haas, Fesler & Ames (LaFollette Johnson) from representing Enloe. Based on Cottini’s
    refusal to disclose expert witness information to a law firm he claimed to be disqualified,
    Enloe offered to delay the exchange of this information until the trial court ruled on the
    disqualification motion. After the trial court denied the motion, Enloe made another
    demand for exchange of expert witness information. Receiving no response by the date
    specified in this second demand, Enloe unilaterally disclosed its expert witness
    information the following day. On the discovery cutoff date, Cottini still had not
    disclosed his expert witnesses. After an unsuccessful appeal to this court on the
    disqualification issue (see Cottini v. Enloe Medical Center (Nov. 5, 2010, C062904)
    [nonpub. opn.]), Cottini finally disclosed his expert witnesses and moved the trial court to
    reopen discovery, continue the trial, and grant him relief from the tardy disclosure. The
    trial court denied these motions and ultimately precluded Cottini from offering expert
    testimony.
    On appeal, Cottini challenges these decisions. He also claims the trial court
    prejudicially erred “by giving the jury an instruction which closed the jury to considering
    1      Undesignated statutory references are to the Code of Civil Procedure.
    2
    causation of [his] harms based upon common knowledge.” We affirm the judgment. As
    we explain, the trial court did not abuse its discretion in concluding Cottini failed to
    demonstrate “exceptional circumstances” (§ 2034.710, subd. (b)) warranting his
    disclosure of expert witness information after the discovery cutoff date. It was also
    within the trial court’s discretion to conclude Cottini’s failure to submit this information
    was not “the result of mistake, inadvertence, surprise, or excusable neglect.” (§
    2034.720, subd. (c)(1).) Nor did the trial court abuse its discretion in excluding from
    evidence the testimony of Cottini’s expert witnesses. While section 2034.300, by its
    terms, did not mandate the exclusion of this testimony because Enloe’s compliance with
    the expert witness exchange requirements was untimely, we do not read this section to
    preclude the trial court from excluding expert witness testimony for an egregious
    violation of the exchange requirements unless the objecting party’s compliance was
    flawless. We conclude that where the party objecting to expert testimony under section
    2034.300 would be entitled to mandatory exclusion of such testimony but for his or her
    own failure to timely comply with the expert witness exchange requirements, exclusion
    of the expert testimony is not mandatory, but discretionary. Based on the facts of this
    case, there was no abuse of discretion. Finally, we conclude any instructional error was
    harmless.
    BACKGROUND
    Cottini is a wheelchair athlete with incomplete quadriplegia who was brought to
    Enloe after sustaining a shoulder injury while training for the Paralympics. He sued
    Enloe for negligence and abuse of a dependent adult, claiming he suffered a severe
    pressure sore on his coccyx caused by the failure of Enloe employees to regularly
    reposition him, he did not receive adequate bowel care, and he also suffered a traumatic
    injury to his scrotum. The trial date was set for August 17, 2009.
    3
    First Demand for Exchange of Expert Witness Information
    On June 3, 2009, Enloe served Cottini with a demand for “simultaneous exchange
    of information concerning each party’s expert trial witnesses,” specifying June 29, 2009,
    as the date for the exchange. Seven days later, Cottini’s attorney, Joseph M. Earley III,
    sent a letter to Enloe’s attorney, Julie Clark Martin, stating his belief her law firm,
    LaFollette Johnson, was disqualified from representing Enloe based on a conflict of
    interest and “object[ing] to any and all recent actions taken on behalf of Enloe by [her]
    firm.” A more complete description of the purported conflict can be found in Cottini v.
    Enloe Medical 
    Center, supra
    , C062904. For our purposes, we note Earley claimed to
    have given confidential information concerning Cottini’s standard of care consultant to
    another attorney, Cameron Whitehead, prior to Whitehead’s employment with the
    LaFollette Johnson firm.
    On June 17, 2009, Martin responded to Earley’s letter. She declined to withdraw
    from the case, concluding her firm was not disqualified from representing Enloe.
    According to Martin, while Earley mentioned the name of an expert “in passing” during a
    conversation with Whitehead concerning an unspecified case involving “a quadriplegic
    who contended that he developed a pressure ulcer due to the negligence of a defendant
    healthcare provider,” disqualification was not required because (1) the disclosure of the
    name of Cottini’s expert did not create a de facto attorney-client relationship between
    Whitehead and Cottini, (2) no confidential information was shared with Whitehead, and
    (3) even if the name of the expert qualified as a confidential communication, this
    information would no longer be confidential in two weeks when the parties were
    scheduled to disclose their experts.
    On June 25, 2009, Cottini served an “objection” to Enloe’s demand for exchange
    of expert witness information “based upon the conflict of interest.” Four days later, on
    the date scheduled for the exchange, Cottini brought a motion seeking an order
    disqualifying LaFollette Johnson, staying discovery, and continuing the trial. On July 2,
    4
    2009, Martin sent a letter to Earley asking him to reconsider the disqualification motion.
    With respect to the expert witness exchange, she stated: “Based on your objection to our
    Demand for Disclosure of Expert Witnesses, we likewise did not disclose. Assuming that
    the Court denies your Motion to Disqualify, I propose that we agree to disclose no later
    than 3 days from the hearing on that motion. Kindly advise by close of business on July
    6, 2009, as to your decision in this regard.” Earley did not respond to this letter.
    On July 15, 2009, the trial court denied the disqualification motion, concluding
    there was “not sufficient evidence to create an attorney-client relationship [between
    Whitehead and Cottini] nor enough of a disclosure to outweigh the right of [Enloe] to
    choose to have an attorney of their choice represent them.” This ruling was made without
    prejudice to allow Earley to “bring forward another declaration that would be considered
    in camera.” The trial court also denied Cottini’s request to stay discovery and continue
    the trial.
    Second Demand for Exchange of Expert Witness Information
    On July 16, 2009, Martin sent a letter to Earley stating: “We are now 30 days
    before trial, and you have unilaterally determined to not disclose expert witnesses, and
    further, you have refused to engage in any type of communication with me or my office
    to select a mutually agreeable date or time to accomplish this. Please be advised that we
    demand that experts be disclosed no later than Monday, July 20, 2009. [¶] . . . [¶]
    Should you fail to disclose your expert witnesses on that date, we will file a motion with
    the court to exclude your experts from testifying at time of trial. I remain ready and
    willing to discuss this further should you feel that our position is not well taken.” Earley
    did not respond in writing, but did state by phone he believed the trial court “was wrong
    in its ruling” and he would “bring the motion again.”
    On July 21, 2009, having received no expert disclosure from Cottini the previous
    day, Enloe unilaterally disclosed its expert witnesses. This disclosure consisted of one
    retained expert (registered nurse Sue Altamirano) and 37 non-retained experts. Seven
    5
    days later, Cottini served a “further objection” to Enloe’s demand for exchange of expert
    witness information, again “based upon the conflict of interest.” When the discovery
    cutoff date for expert witnesses arrived on August 3, 2009, Cottini still had not disclosed
    his expert witnesses. Nor did he attempt to depose Enloe’s experts prior to this date.
    On August 7, 2009, renewing the disqualification motion, Cottini filed an
    application for in camera review of two supplemental declarations prepared by Earley,
    which was granted. After reviewing the supplemental declarations in camera, the trial
    court again denied the disqualification motion, ruling there was “no material and
    confidential information” disclosed to Whitehead. Cottini appealed and obtained an
    order from the trial court staying the proceedings pending resolution of the appeal.
    On November 5, 2010, this court issued an opinion affirming the trial court’s
    denial of Cottini’s disqualification motion. (Cottini v. Enloe Medical 
    Center, supra
    ,
    C062904.) Following issuance of the remittitur, the trial court set the new trial date for
    February 28, 2011.
    Post-appeal Discovery Attempts
    On January 6, 2011, Cottini disclosed his expert trial witnesses. The disclosure
    consisted of four retained experts (Charles Mahla, Ph.D., James Randy Mervis, M.D.,
    Stephen D. Feinberg, M.D., and registered nurse Betty Lyons) and 49 non-retained
    experts. The following week, Cottini served various notices demanding (1) to depose
    Enloe’s retained expert on January 25, 2011, (2) to depose seven members of Enloe’s
    nursing staff between February 16 and 21, 2011, and (3) to inspect Enloe’s facility on
    February 16, 2011.
    On January 19, 2011, Enloe filed a motion seeking a protective order quashing the
    deposition notices, preventing the inspection, and striking Cottini’s expert witness
    disclosure. In response, Cottini withdrew the deposition notices, urged the trial court to
    deny Enloe’s motion for protective order as moot, and notified the court he would be
    filing a motion “for a brief trial continuance, to reopen discovery and for order regarding
    6
    late served disclosures.”2 The trial court ruled: “Right now, no depositions are
    scheduled or noticed, so there’s no need for a protective order. There has been a
    purported expert disclosure. Now, whether or not that disclosure was proper or not to
    permit the witnesses to testify would be an issue left until the time of trial, when it is
    called.”
    Motion to Reopen Discovery
    On January 25, 2011, Cottini filed the promised motion to reopen discovery,
    arguing: “Neither defendant nor plaintiff timely served expert disclosures pursuant
    to [section] 2034, et seq. [¶] The legal consequence of any party not timely serving an
    expert disclosure is that such party lacks standing to object to any other party’s
    incomplete or untimely disclosure. Therefore, if all parties fail to timely serve
    disclosures (as in this case) the trial may commence without the ability to preclude
    improper expert testimony. This does not lead to an efficient trial. [¶] In order to avoid
    unnecessary motions regarding experts and other necessary discovery, justice will be
    better served by reopening discovery based upon a trial date a few months from the
    February 28, 2011 date, (which was only set a few weeks ago) and allowing plaintiff to
    serve a tardy expert disclosure. Only then will the parties be in a position to enter into
    meaningful settlement discussions or, alternatively, to advocate for their respective
    clients. Otherwise, both parties cannot receive a fair hearing of their cases at trial.” With
    respect to his compliance with section 2034.710, allowing the trial court to grant leave to
    submit a late expert witness disclosure after the time limit for the completion of discovery
    only “[u]nder exceptional circumstances” (§ 2034.710, subd. (b)), Cottini argued that
    because “there was a genuine concern regarding disqualification of defense counsel,” he
    “objected to the expert disclosure demand served by defendant,” and as a result, “both
    parties failed to timely disclose experts.” Cottini further argued he “immediately” served
    2     For simplicity, we refer to Cottini’s multifaceted motion as the motion to reopen
    discovery.
    7
    his expert witness disclosure following the remittitur and his “retained experts have been
    available for deposition since that time.”
    Two days later, Enloe filed an opposition to the motion. With respect to
    continuing the trial, Enloe argued Cottini did not make “the requisite showing of ‘good
    cause,’ ” explaining: “Plaintiff had more than a reasonable opportunity to conduct
    discovery and prepare for trial prior to the original trial date. However, he made a
    deliberate, tactical decision to not engage in discovery but, rather, pursued meritless
    motions and appeals to disqualify [Martin]. He should not be entitled to capitalize on his
    gamesmanship in order to obtain yet another unwarranted continuance of trial of this
    matter.” With respect to reopening discovery, Enloe argued Cottini “showed no interest”
    in taking depositions of Enloe staff “prior to close of discovery, or at any time prior to the
    original trial date,” despite the fact Cottini properly noticed depositions of several staff
    members on May 14, 2009, and Enloe “attempted to arrange these depositions.” Enloe
    also pointed out Cottini never “serve[d] a notice of deposition for any of the individuals
    listed in the [expert witness] disclosure” prior to the close of expert witness discovery and
    never “requested an inspection of [Enloe’s] premises prior to the close of discovery.”
    Finally, with respect to Cottini’s request to allow the late expert witness disclosure, Enloe
    argued: “Plaintiff should not now be entitled to claim defendant’s disclosure was
    ‘untimely,’ as any delay in the defendant’s disclosure was an outcome produced by his
    own efforts to thwart the original trial from going forward. In addition, plaintiff should
    be precluded from introducing into evidence expert opinion testimony from any of his
    four retained experts, or any of the 49 other non-retained experts who he failed to
    disclose until the eve of the continued trial date, and more than one and one half years
    after disclosure should have been properly performed.”
    On January 28, 2011, at the hearing on the motion, after the parties argued their
    respective positions, the following exchange occurred between the trial court and
    Cottini’s trial counsel:
    8
    “THE COURT: [To Cottini’s counsel, Earley], what was the problem with
    disclosing an expert and the list of your witnesses, even if the Court had been wrong in
    finding a conflict of counsel? What possible harm could there have been?
    “[Earley]: I don’t understand why that’s not clear.
    “THE COURT: It’s not clear to me at all. What would have been the harm if you
    had disclosed experts, then you asked the Court to rule on whether there was a conflict?
    What would have been the harm if the Court had decided there was a conflict?
    “[Earley]: Why would -- I get back to the preliminary question. Why would
    plaintiff engage in litigation with a --
    “THE COURT: What would have been the harm in disclosing an expert and if
    you had won the motion, they would have been off the case, you would have the same
    expert. All you were required to do was disclose the name and, I guess, the qualifications
    of the expert. What would have been the harm?
    “[Earley]: The harm would have been that we were disclosing further information
    to a firm that we sincerely believed was disqualified.
    “THE COURT: What is the problem with that? You won’t answer my question.
    What is the problem with that? Okay, they’ve got the information about who your expert
    is and you’re successful in throwing them off the case. They’ve got your expert, but they
    can’t do anything with it because they can’t try the case anyway. Or, you lose the
    motion, you disclose the expert and now they have the expert information.
    “[Earley]: They already knew who my expert was. They already knew that. They
    knew -- also knew about the problems that we were having with --
    “THE COURT: Why didn’t you disclose? I guess there’s no answer.”
    Earley then argued it would have made “no sense” to disclose experts to a firm he
    believed to be disqualified, and continued: “We said, look, there’s a conflict, so we
    didn’t disclose on that date. Neither did they. They didn’t for three weeks later, or -- it
    doesn’t matter whether it’s three weeks or it’s a year and a half, because it’s still late.
    9
    What we did was, and what we’re doing right now is we’re asking for relief for that late
    filing. They’ve never done that, and they have to do that. They’re in a position where
    they’re late filed, we’re late filed. I’m not trying to claim we’re not late filed. I’m
    seeking relief for it today because we didn’t have any time to do that before. Now we do.
    We brought this as quickly as we could, and we’re asking for the proper relief. The
    defense is not even asking for that. If the -- the law[] is clear that when we come in and
    ask, and there’s no prejudice established, and you know we have a reason for having --
    having a tardy disclosure, and we made our experts available ever since, ever since the
    disclosures were served, for depositions, the Court doesn’t have any choice but to grant
    the relief.”
    Denying the motion, the trial court explained: “[I]n light of your inability to
    answer my question as to why in the world you wouldn’t [disclose], and your answer to
    that was, well, they knew it anyway, makes it even more preposterous . . . . The Court is
    going to find that there’s no grounds for late disclosure of expert witnesses, and because
    there’s no grounds for disclosure of late expert witnesses, the Court is going to deny the
    motion to continue the trial and the Court is going to deny the motion to reopen
    discovery.”
    Motions in Limine Regarding Expert Testimony
    On February 3, 2011, Cottini filed a motion in limine seeking to preclude Enloe
    from objecting to the expert testimony of his late-disclosed expert witnesses. Relying on
    West Hills Hospital v. Superior Court (1979) 
    98 Cal. App. 3d 656
    , (West Hills) Cottini
    renewed his argument that since “[n]either defendant nor plaintiff served their disclosures
    ‘on or before the date of exchange specified in the demand,’ ” (italics added) as required
    by section 2034.260, subdivision (a), “neither [has] legal standing to object to the other’s
    expert witness disclosure or seek preclusion of the other’s expert witness testimony on
    the basis of being late.” Enloe opposed the motion and filed its own motion in limine
    seeking to preclude Cottini from presenting expert testimony at trial. Enloe argued it
    10
    “reasonably complied with [section] 2034.260 by attempting to ‘meet and confer’ on the
    issue of expert disclosure several times after plaintiff expressly indicated that he would
    not participate in expert disclosure with the defendant, and ultimately by disclosing
    experts in late July of 2009.” Accordingly, argued Enloe, it was “entirely within its rights
    to object to plaintiff’s disclosure of expert witnesses more than one and one half years
    after the original date for the production of such experts,” and Cottini’s unreasonable
    failure to comply with the expert exchange requirements warranted mandatory exclusion
    of Cottini’s experts under section 2034.300.
    On February 22, 2011, the trial court ruled: “Neither party has standing to object
    to expert witness [t]estimony.” Two days later, Enloe filed a motion to continue the trial,
    which was granted. A new trial date was set for May 9, 2011.
    On May 6, 2011, Enloe renewed its motion in limine to preclude Cottini from
    offering expert testimony at trial. On May 9, 2011, the trial court informed counsel it
    was “inclined to go ahead and allow the experts” because “neither party has standing to
    object to the other’s experts because nobody disclosed experts on time,” but indicated it
    would entertain argument on the issue the next day. The following day, without hearing
    argument on the expert witness issue, the trial court stated: “The court has previously
    ruled on this. You may have called it a tentative decision. If it was a tentative decision,
    the court is going to rule with finality now. The court is going to find that neither party
    disclosed experts timely, therefore neither party has standing to object to the other party’s
    expert witnesses. [¶] [Martin], I absolutely understand why your firm was tardy in
    disclosing the experts, and I do think there was gamesmanship, and I do think that we had
    improper actions on their part, but there was nothing that prevented you from disclosing
    expert witnesses timely.” Martin then asked the trial court to reserve ruling to allow her
    to make a record on the issue. The trial court agreed and stated: “Let’s reserve for now,
    but I’m certainly going to allow them to make mention of the experts [in the opening
    statement], and they are taking the chance that if [or] when we argue this, if I rule
    11
    differently, then I will bring it to the jury’s attention, and I will strike all of the evidence
    including anything that was made reference to in the opening statements.”
    On May 12, 2011, at the close of the second day of trial, Enloe objected to the
    anticipated testimony of Phillip Filbrandt, M.D., a non-retained expert disclosed by
    Cottini after the cutoff date for expert discovery, who was scheduled to testify the
    following day. Martin argued: “The problem is, and I understand what the court was
    thinking, but the court only had half the analysis. The court also did not bring in these
    equitable principles that are so important and in play here because there was a late
    disclosure -- first of all, the second half of the analysis is that there needs to be mutual
    disclosure. That clearly did not happen nor was it ever going to happen in this case. The
    second part of the analysis, of course, is the fact that but for counsel’s conduct, I would
    have been on time disclosing those experts. It’s like somebody [helping] you back into a
    parking space and telling you, ‘You got room,’ and sticking their foot under your tire and
    suing you for negligence because you ran over their foot. [¶] In reliance, he made me
    late. He induced me. In my effort to try to arrange what we were supposed to do as
    officers of the court, arrange for mutual exchange, trying to work out something I thought
    was a legitimate beef, he had a motion pending to recuse me. I don’t think that my client
    should be penalized. [¶] Moreover, there’s a whole lot of prejudice going on here, your
    Honor. I now am looking at doing a cross-examination of an expert that as of what,
    February or January, I believed he couldn’t use because he was not allowed to disclose.
    So then I don’t learn until February that maybe there’s a possibility he will be able to
    bring in experts. In the meantime, by golly, discovery is closed.”
    In response, Cottini’s co-counsel, Lawrance A. Bohm, argued: “In order to have
    standing to prevent an expert from coming in to trial you must disclose on time. When
    that didn’t happen, the right to make that objection was gone.” He continued: “That’s
    why I instructed [Earley] to file that motion in limine to allow the experts in this case so
    that I could decide whether or not I could take on this trial on behalf of [Cottini]. . . . [¶]
    12
    And now after I have had -- I have got two experts, one already bought her plane ticket
    and the other one is buying his now, this is coming up again after the court has indicated
    time and time again after looking at the codes and the authorities in [Earley]’s brief it’s
    very straightforward, if either side does not disclose on time, it eliminates standing as to
    object to the others.”
    The trial court then addressed Martin: “I have to tell you that my gut tells me that
    you are correct. I think there’s been terrible gamesmanship in this case. I have seen it
    from the beginning all the way through half an hour ago. So my gut tells me you are
    correct, that you have done things that are proper and [Earley] did not. My gut tells me
    he should not be allowed to call those witnesses. That’s what my gut tells me, but my
    legal research tells me that you do not have standing to bring that objection.” After
    further argument between the trial court and Cottini’s counsel concerning the reason he
    did not disclose the expert information until after the remittitur, he conceded “there
    wouldn’t have been any harm” in disclosing on the date set forth in Enloe’s demand for
    exchange of expert witness information. The trial court found “bad faith” on the part of
    Earley for failing to disclose on that date and took the matter under submission.
    The following morning, the trial court ruled Cottini would not be allowed to
    present expert testimony from his late-disclosed expert witnesses “based on the equities,”
    explaining: “[T]he late disclosure by each side had an incredibly different effect. When
    [Martin] provided late disclosure, it was when discovery was still open; and her late
    disclosure didn’t harm anyone equitably, because [Earley] could have taken any
    deposition [he] wanted at any time.” However, the trial court continued, “[Martin]
    couldn’t take depositions because, by the time [Cottini’s] disclosure was made, discovery
    had already been cut off. [¶] Now, I understand that [Earley] magnanimously offered to
    reopen discovery; but reopening discovery is an entirely different concept than allowing
    depositions to be taken. Reopening discovery opens up everything. And it’s not
    appropriate for [Martin], who has prepared her case all along, to agree to reopen
    13
    discovery for all purposes.” Turning to the standing issue, the trial court explained that,
    because Enloe’s expert witness disclosure was not timely, it could not demand the
    remedy of “mandatory exclusion” of Cottini’s expert witnesses under section 2034.300.
    But the trial court did not read this provision to limit its equitable power to exclude
    Cottini’s experts, and concluded: “[A]s I explained earlier, the Court’s equitable powers
    causes this Court to rule that it would be highly prejudicial to . . . expect [Enloe] to go
    through trial with experts that weren’t disclosed until after discovery cutoff.”
    Trial and Verdict
    After the ruling, Cottini’s co-counsel asked to be allowed to proceed with Cottini’s
    case “through the designated experts of the Defense.” The trial court allowed trial to
    proceed on this basis. For present purposes, we need not recount the details of the trial.
    We do note Enloe filed a motion for nonsuit based on Cottini’s lack of expert testimony
    on standard of care, breach, and causation. Denying the motion, the trial court stated:
    “The court is aware that this was a very close call, that really I’m amazed at counsel’s
    ability to have cobbled together the case that he has been able to cobble together with the
    trial court’s prior rulings, but it is a very disfavored motion, and it really is the intent that
    cases that are not absolutely without merit should go in front of a jury in a close call. The
    motion should be denied.”
    Thereafter, the trial court instructed the jury on Cottini’s medical negligence and
    neglect of a dependent adult causes of action. However, the verdict form addressed only
    whether Enloe was liable under Cottini’s neglect of a dependent adult cause of action.
    The jury was not asked to resolve the medical negligence cause of action. The jury
    found: (1) “[Cottini was] a dependent adult while in Enloe Medical Center’s care or
    custody”; (2) “[Cottini was] in Enloe Medical Center’s care or custody”; and (3) “one or
    more of Enloe Medical Center’s employees fail[ed] to use that degree of care that a
    reasonable person in the same situation would have used in assisting in personal hygiene,
    provision of medical care, or health and safety hazards”; but (4) “the employee’s conduct
    14
    [was not] a substantial factor in causing harm to [Cottini].” Judgment was entered in
    favor of Enloe. Cottini appeals.
    DISCUSSION
    I
    Statutory Overview
    “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
    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
    purpose of the expert witness discovery statutes are “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 respect
    to expert witnesses than ordinary fact witnesses because the opponent must prepare to
    cope with the expert’s specialized knowledge. [Citation.] The Legislature responded to
    this need by enacting detailed procedures for discovery pertaining to expert witnesses.
    (See § 2034.210 et. seq.)” 
    (Boston, supra
    , 170 Cal.App.4th at p. 951.)
    Section 2034.210 provides: “After the setting of the initial trial date for the action,
    any party may obtain discovery by demanding that all parties simultaneously exchange
    information concerning each other’s expert trial witnesses to the following extent: [¶]
    (a) Any party may demand a mutual and simultaneous exchange by all parties of a list
    containing the name and address of any natural person, including one who is a party,
    whose oral or deposition testimony in the form of an expert opinion any party expects to
    offer in evidence at the trial. [¶] (b) If any expert designated by a party under
    15
    subdivision (a) is a party or an employee of a party, or has been retained by a party for
    the purpose of forming and expressing an opinion in anticipation of the litigation or in
    preparation for the trial of the action, the designation of that witness shall include or be
    accompanied by an expert witness declaration under Section 2034.260. [¶] (c) Any party
    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
    described in subdivision (b) in the course of preparing that expert’s opinion.”
    “The demand shall specify the date for the exchange of lists of expert trial
    witnesses, expert witness declarations, and any demanded production of writings. 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 court, on motion
    and a showing of good cause, orders an earlier or later date of exchange.” (§ 2034.230,
    subd. (b).)
    Section 2034.250 provides in relevant part: “(a) A party who has been served with
    a demand to exchange information concerning expert trial witnesses may promptly move
    for a protective order. . . . [¶] (b) The court, for good cause shown, may make any order
    that justice requires to protect any party from unwarranted annoyance, embarrassment,
    oppression, or undue burden and expense. The protective order may include, but is not
    limited to, one or more of the following directions: [¶] (1) That the demand be quashed
    because it was not timely served. [¶] (2) That the date of exchange be earlier or later
    than that specified in the demand. [¶] (3) That the exchange be made only on specified
    terms and conditions. [¶] (4) That the production and exchange of any reports and
    writings of experts be made at a different place or at a different time than specified in the
    demand. [¶] (5) That some or all of the parties be divided into sides on the basis of their
    identity of interest in the issues in the action, and that the designation of any experts as
    described in subdivision (b) of Section 2034.210 be made by any side so created. [¶]
    16
    (6) That a party or a side reduce the list of employed or retained experts designated by
    that party or side under subdivision (b) of Section 2034.210.”
    Section 2034.260 provides: “(a) All parties who have appeared in the action shall
    exchange information concerning expert witnesses in writing on or before the date of
    exchange specified in the demand. The exchange of information may occur at a meeting
    of the attorneys for the parties involved or by a mailing on or before the date of exchange.
    [¶] (b) The exchange of expert witness information shall include either of the following:
    [¶] (1) A list setting forth the name and address of any person whose expert opinion that
    party expects to offer in evidence at the trial. [¶] (2) A statement that the party does not
    presently intend to offer the testimony of any expert witness. [¶] (c) If any witness on
    the list is an expert as described in subdivision (b) of Section 2034.210, the exchange
    shall also include or be accompanied by an expert witness declaration signed only by the
    attorney for the party designating the expert, or by that party if that party has no attorney.
    This declaration shall be under penalty of perjury and shall contain: [¶] (1) A brief
    narrative statement of the qualifications of each expert. [¶] (2) A brief narrative
    statement of the general substance of the testimony that the expert is expected to give.
    [¶] (3) A representation that the expert has agreed to testify at the trial. [¶] (4) 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. [¶] (5) A statement of
    the expert’s hourly and daily fee for providing deposition testimony and for consulting
    with the retaining attorney.”
    This brings us to the crucial statutory provisions at issue in this case. 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
    17
    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 under Article 3 (commencing with Section 2034.410).”
    (Italics added.)
    One exception to section 2034.300’s rule of mandatory exclusion of expert witness
    testimony is found in Article 5, commencing with section 2034.710, which provides in
    relevant part: “(a) On motion of any party who has failed to submit expert witness
    information on the date specified in a demand for that exchange, the court may grant
    leave to submit that information on a later date. [¶] (b) A motion under subdivision (a)
    shall be made a sufficient time in advance of the time limit for the completion of
    discovery . . . to permit the deposition of any expert to whom the motion relates to be
    taken within that time limit. Under exceptional circumstances, the court may permit the
    motion to be made at a later time.” (Italics added.) Then, section 2034.720 provides:
    “The court shall grant leave to submit tardy expert witness information only if all of the
    following conditions are satisfied: [¶] (a) The court has taken into account the extent to
    which the opposing party has relied on the absence of a list of expert witnesses. [¶]
    (b) The court has determined that any party opposing the motion will not be prejudiced in
    maintaining that party’s action or defense on the merits. [¶] (c) The court has
    determined that the moving party did all of the following: [¶] (1) Failed to submit the
    information as the result of mistake, inadvertence, surprise, or excusable neglect. [¶]
    (2) Sought leave to submit the information promptly after learning of the mistake,
    inadvertence, surprise, or excusable neglect. [¶] (3) Promptly thereafter served a copy of
    the proposed expert witness information described in Section 2034.260 on all other
    parties who have appeared in the action. [¶] (d) The order is conditioned on the moving
    party making the expert available immediately for a deposition under Article 3
    (commencing with Section 2034.410), and on any other terms as may be just, including,
    but not limited to, leave to any party opposing the motion to designate additional expert
    18
    witnesses or to elicit additional opinions from those previously designated, a continuance
    of the trial for a reasonable period of time, and the awarding of costs and litigation
    expenses to any party opposing the motion.” (Italics added.)
    II
    Denial of Cottini’s Motion to Reopen Discovery
    Cottini contends the trial court prejudicially erred in denying his motion to reopen
    discovery, continue the trial, and allow late submission of expert witness information.
    We disagree.
    The trial court’s decision to deny each of these requests is subject to review for
    abuse of discretion. (See Johnson v. Alameda County Medical Center (2012) 
    205 Cal. App. 4th 521
    , 531 [motion to reopen discovery subject to abuse of discretion standard
    of review]; Oliveros v. County of Los Angeles (2004) 
    120 Cal. App. 4th 1389
    , 1395
    [motion for continuance subject to abuse of discretion standard of review]; Plunkett v.
    Spaulding (1997) 
    52 Cal. App. 4th 114
    , 135 [motion for relief from failure to timely
    submit expert witness information subject to abuse of discretion standard of review],
    disapproved on other grounds by Schreiber v. Estate of Kiser (1999) 
    22 Cal. 4th 31
    , 39-
    40.)
    As a preliminary matter, we note Enloe made a timely demand for exchange of
    expert witness information on June 3, 2009 (see § 2034.220), and properly specified
    June 29, 2009, as the date of exchange (see § 2034.230, subd. (b)). Cottini served an
    “objection” to the demand on June 25, 2009. However, “[t]he Legislature did not provide
    for objections to demands for exchanges of experts.” (Zellerino v. Brown (1991) 
    235 Cal. App. 3d 1097
    , 1112.) Instead, Cottini should have filed a motion for a protective
    order. (§ 2034.250, subd. (a).) Having neither sought nor received such an order, Cottini
    was required to “exchange information concerning expert witnesses in writing on or
    before the date of exchange specified in the demand” (§ 2034.260, subd. (a)), i.e.,
    June 29, 2009. He did not do so. Neither did Enloe. Insisting the exchange be “mutual
    19
    and simultaneous,” as provided in section 2034.210, subdivision (a), Enloe attempted to
    negotiate an alternative date for the exchange, to no avail, and then served a second
    demand for exchange of expert witness information. Cottini again objected and again did
    not move for a protective order. When Cottini did not disclose his expert witness
    information by the date specified in the second demand, Enloe unilaterally disclosed its
    expert witness information on July 21, 2009. Between Enloe’s disclosure of expert
    witness information and the cutoff date for expert discovery, Cottini did not disclose his
    expert witness information.3 Nor did Cottini attempt to depose Enloe’s experts. (See §
    2034.410 et seq.) Instead, Cottini disclosed his expert witness information on January 6,
    2011, after the case was remitted to the trial court following an unsuccessful appeal on
    the aforementioned disqualification issue. Cottini then, in connection with his motion to
    reopen discovery and continue the trial, moved the trial court to allow late submission of
    the expert witness information under section 2034.710, which was denied.
    Section 2034.710 allows the trial court, “[o]n motion of any party who has failed
    to submit expert witness information on the date specified in a demand for that
    exchange,” to “grant leave to submit that information on a later date,” but provides such a
    motion “shall be made a sufficient time in advance of the time limit for the completion of
    discovery . . . to permit the deposition of any expert to whom the motion relates to be
    taken within that time limit. Under exceptional circumstances, the court may permit the
    motion to be made at a later time.” (Italics added.) Cottini moved for leave to submit his
    tardy expert witness information well after the close of expert witness discovery. Thus,
    3      All discovery proceedings pertaining to expert witnesses must be completed “on
    or before the 15th day, and . . . motions concerning that discovery heard on or before the
    10th day, before the date initially set for the trial of the action.” (§ 2024.030.) However,
    because the 15th day before the initial trial date of August 17, 2009, fell on a Sunday, the
    cutoff date for expert discovery was extended until “the next court day closer to the trial
    date” (§ 2016.060), i.e., August 18, 2009.
    20
    exceptional circumstances were required in order for Cottini to be entitled to make the
    motion at all.
    Moreover, section 2024.030 provides that “[a]ny party shall be entitled as a matter
    of right . . . to have motions concerning [expert witness] discovery heard on or before the
    10th day, before the date initially set for the trial of the action.” (Italics added.) “Thus, if
    a party properly notices a discovery motion to be heard on or before the discovery motion
    cutoff date, that party has a right to have the motion heard. By negative implication, a
    party who notices a discovery motion to be heard after the discovery motion cutoff date
    does not have a right to have the motion heard.” (Pelton-Shepherd Industries, Inc. v.
    Delta Packaging Products, Inc. (2008) 
    165 Cal. App. 4th 1568
    , 1586.) In apparent
    recognition of this, Cottini also moved to reopen discovery under section 2024.050,
    which provides in relevant part that “[o]n motion of any party, the court may grant leave .
    . . to have a motion concerning discovery heard, closer to the initial trial date, or to
    reopen discovery after a new trial date has been set.” (§ 2024.050, subd. (a).)
    Subdivision (b) of this section provides: “In exercising its discretion to grant or deny this
    motion, the court shall take into consideration any matter relevant to the leave requested,
    including, but not limited to, the following: [¶] (1) The necessity and the reasons for the
    discovery. [¶] (2) The diligence or lack of diligence of the party seeking the discovery or
    the hearing of a discovery motion, and the reasons that the discovery was not completed
    or that the discovery motion was not heard earlier. [¶] (3) Any likelihood that permitting
    the discovery or hearing the discovery motion will prevent the case from going to trial on
    the date set, or otherwise interfere with the trial calendar, or result in prejudice to any
    other party. [¶] (4) The length of time that has elapsed between any date previously set,
    and the date presently set, for the trial of the action.” (§ 2024.050, subd. (b).)
    Denying Cottini’s motion, the trial court stated: “[I]n light of your inability to
    answer my question as to why in the world you wouldn’t [disclose], and your answer to
    that was, well, they knew it anyway, makes it even more preposterous . . . The Court is
    21
    going to find that there’s no grounds for late disclosure of expert witnesses, and because
    there’s no grounds for disclosure of late expert witnesses, the Court is going to deny the
    motion to continue the trial and the Court is going to deny the motion to reopen
    discovery.” Implicit in this statement is a finding no “exceptional circumstances”
    justified Cottini’s filing of the motion to allow late submission of expert witness
    information after the close of discovery. (§ 2034.710.) Based on the facts of this case,
    the trial court did not abuse its discretion in so concluding. Also implicit in the trial
    court’s statement is a finding Cottini did not demonstrate “diligence” in seeking expert
    witness discovery prior to the cutoff date and did not supply sufficient “reasons that the
    discovery was not completed” prior to that date. (§ 2024.050, subd. (b)(2).) Indeed,
    Cottini’s attorneys made a strategic decision to forgo expert witness discovery in favor of
    pursuing a meritless disqualification motion. Diligence would have required Cottini to
    disclose his expert witnesses while this motion was pending. At the very least, he should
    have done so after the trial court denied the motion, when Enloe disclosed its experts.
    Earley later conceded this would have caused Cottini no harm. Gambling on the outcome
    of a renewed disqualification motion and appeal of the trial court’s denial of the motion is
    not a good reason to fail to complete discovery during the statutory period for its
    completion. Based on the factors listed in section 2024.050, subdivision (b), the trial
    court was more than justified in denying Cottini leave to reopen discovery. And without
    such leave, he had no right to have his motion to submit late expert witness information
    heard at all.
    Finally, in light of the foregoing implied findings, section 2034.720 mandated
    denial of Cottini’s motion to allow late submission of expert witness information. As
    mentioned, this section provides: “The court shall grant leave to submit tardy expert
    witness information only if all of the following conditions are satisfied: [¶] (a) The court
    has taken into account the extent to which the opposing party has relied on the absence of
    a list of expert witnesses. [¶] (b) The court has determined that any party opposing the
    22
    motion will not be prejudiced in maintaining that party’s action or defense on the merits.
    [¶] (c) The court has determined that the moving party did all of the following: [¶]
    (1) Failed to submit the information as the result of mistake, inadvertence, surprise, or
    excusable neglect. [¶] (2) Sought leave to submit the information promptly after
    learning of the mistake, inadvertence, surprise, or excusable neglect. [¶] (3) Promptly
    thereafter served a copy of the proposed expert witness information described in Section
    2034.260 on all other parties who have appeared in the action. [¶] (d) The order is
    conditioned on the moving party making the expert available immediately for a
    deposition under Article 3 (commencing with Section 2034.410), and on any other terms
    as may be just, including, but not limited to, leave to any party opposing the motion to
    designate additional expert witnesses or to elicit additional opinions from those
    previously designated, a continuance of the trial for a reasonable period of time, and the
    awarding of costs and litigation expenses to any party opposing the motion.” (Italics
    added.)
    Conversely, the trial court shall not grant leave to submit late expert witness
    information if any of the statutory conditions are not satisfied. Here, the trial court’s
    statements on the record indicate a finding Cottini’s failure to submit the expert witness
    information was not “the result of mistake, inadvertence, surprise, or excusable neglect.”
    (§ 2034.720, subd. (c)(1).) It was gamesmanship. As our Supreme Court has stated:
    “ ‘Late disclosure of experts . . . frustrates the very purposes of the discovery statutes, and
    should be permitted, with appropriate safeguards, only when absolutely necessary to
    avoid a miscarriage of justice.’ [Citation.]” (Bonds v. 
    Roy, supra
    , 20 Cal.4th at p. 147.)
    We conclude the trial court did not abuse its discretion in denying Cottini’s motion
    to reopen discovery, continue the trial, and allow late submission of expert witness
    information.
    23
    III
    Exclusion of Cottini’s Expert Witnesses
    Cottini also claims the trial court prejudicially erred in excluding from evidence
    the testimony of his expert witnesses as a remedy for his failure to comply with the expert
    witness exchange requirements prior to the cutoff date for expert discovery. He is
    mistaken.
    “We generally review the trial court’s ruling on a motion to exclude an expert’s
    opinion for abuse of discretion. [Citation.] . . . [Citation.] But ‘when the exclusion of
    expert testimony rests on a matter of statutory interpretation, we apply de novo review.’
    [Citation.]” 
    (Boston, supra
    , 170 Cal.App.4th at p. 950.) “Our fundamental task in
    interpreting a statute is to determine the Legislature’s intent so as to effectuate the law’s
    purpose. We first examine the statutory language, giving it a plain and commonsense
    meaning. We do not examine that language in isolation, but in the context of the
    statutory framework as a whole in order to determine its scope and purpose and to
    harmonize the various parts of the enactment. If the language is clear, courts must
    generally follow its plain meaning unless a literal interpretation would result in absurd
    consequences the Legislature did not intend. If the statutory language permits more than
    one reasonable interpretation, courts may consider other aids, such as the statute’s
    purpose, legislative history, and public policy. [Citations.]” (Coalition of Concerned
    Communities, Inc. v. City of Los Angeles (2004) 
    34 Cal. 4th 733
    , 737; San Leandro
    Teachers Assn. v. Governing Bd. of San Leandro Unified School Dist. (2009) 
    46 Cal. 4th 822
    , 831.)
    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. [¶]
    24
    (c) Produce reports and writings of expert witnesses under Section 2034.270. [¶]
    (d) Make that expert available for a deposition under Article 3 (commencing with Section
    2034.410).” (Italics added.) As previously explained, Cottini did not qualify for the
    exception to this rule of mandatory exclusion of expert testimony found in Article 5 (see
    §§ 2034.710 and 2034.720).
    Cottini does not dispute that had Enloe made a complete and timely compliance
    with section 2034.260, exclusion of his expert witnesses would be mandatory under
    section 2034.300. Nor could he. By waiting until after the expert discovery cutoff date
    to disclose his expert witnesses, he prevented Enloe from deposing these witnesses,
    making them unavailable for deposition. And while it may not have been unreasonable
    for Cottini to seek disqualification of Enloe’s attorneys―even though he ultimately did
    not prevail on that issue―it was unreasonable for him to use the disqualification motion
    as a reason not to disclose expert witness information until after the cutoff date for expert
    discovery. Nor does Cottini’s willingness to reopen discovery following the remittitur
    remedy the situation. As we have explained, in order to grant Cottini’s motion to reopen
    discovery, the trial court had to consider his diligence in pursuing discovery prior to the
    cutoff date and the reasons for his failure to complete discovery prior to that date. (§
    2024.050, subd. (b).) Cottini was neither diligent in pursuing discovery, nor did he
    possess a good reason for failing to disclose his expert witnesses and depose Enloe’s
    experts before the close of discovery.
    Accordingly, relying on West 
    Hills, supra
    , 
    98 Cal. App. 3d 656
    , Cottini argues
    Enloe’s late disclosure of its expert witnesses results in a lack of standing to object to the
    testimony of Cottini’s expert witnesses. Such reliance is misplaced. In West Hills, a
    medical malpractice case brought by the plaintiff against West Hills Hospital and two
    doctors, the defendant doctors addressed a demand for expert witness information to the
    plaintiff and, while the demand was not addressed to the defendant hospital, in addition to
    serving the plaintiff, the demand was also served on counsel for the hospital. (Id. at p.
    25
    657.) The hospital did not serve a list of experts on any party. Because of this, the
    plaintiff successfully moved to prevent the hospital from calling any expert witnesses at
    trial. (Id. at p. 658.) The Court of Appeal issued a writ of mandate directing the trial
    court to vacate its order granting the plaintiff’s motion to exclude the expert testimony.
    (Id. at p. 661.) The court framed the issue as “whether, by serving an informational copy
    of the Demand on petitioner, [the defendant doctors] also created rights and duties as
    between petitioner and real party.” (Id. at p. 659.) Answering this question in the
    negative, the court held “only the party who makes the demand and the party on whom it
    is made are required to comply with [former] section 2037.2 and not other parties on
    whom copies of the demand may be served.” (Id. at p. 660.)
    The court then stated: “Petitioner’s second contention regarding real party’s
    standing is also well taken. [Former section] 2037.5 requires first that the party seeking
    sanctions be in compliance with [former] section 2037.2. Real party had filed his list of
    experts after the date of exchange ([former §] 2037.1) and therefore was not, strictly
    speaking, in compliance with [former] section 2037.2. Furthermore, even if petitioner
    had been required to serve a list of its experts, pursuant to [former] section 2037.2,
    subdivision (a)(3), the only party on whom it would have been required to serve its list
    was the party who served the Demand on it -- in other words, [the defendant doctors], and
    pursuant to [former] section 2037.5, only [the defendant doctors] would have had
    standing to object to petitioner’s calling its expert witnesses.” (West 
    Hills, supra
    , 98
    Cal.App.3d at p. 660.)4
    4      Former section 2037.2 provided in relevant part: “Not later than the date of
    exchange: [¶] (1) Each party who served a demand and each party upon whom a
    demand was served shall deposit with the clerk of the court their list of expert witnesses.
    [¶] (2) A party who served a demand shall serve his [or her] list upon each party on
    whom he [or she] served his [or her] demand. [¶] (3) Each party on whom a demand
    was served shall serve his [or her] list upon the party who served the demand.” (Former
    § 2037.2, subd. (a); Stats. 1978, ch. 1069, § 1, p. 3286.)
    26
    Assuming the foregoing statements in West Hills amount to an alternative holding
    rather than dictum (see Varshock v. Dept. of Forestry & Fire Protection (2011) 
    194 Cal. App. 4th 635
    , 646, fn. 7), we cannot read the decision to hold in all cases, regardless
    of the circumstances, strict compliance with former section 2037.2 was required in order
    to have standing to object to expert testimony. “It is axiomatic that language in a judicial
    opinion is to be understood in accordance with the facts and issues before the court. An
    opinion is not authority for propositions not considered.” (Chevron U.S.A., Inc. v.
    Workers’ Comp. Appeals Bd. (1999) 
    19 Cal. 4th 1182
    , 1195.) At most, the West Hills
    decision held that where the party seeking exclusion of expert testimony under former
    section 2037.5 did not comply with former section 2037.2, and where the party seeking to
    offer such expert testimony was not required to serve a list of expert witnesses on the
    objecting party in any event, the objecting party may not demand the mandatory sanction
    of exclusion provided for in former section 2037.5. Here, unlike West Hills, Enloe
    demanded and was entitled to receive Cottini’s expert witness list on the date specified in
    the demand. Cottini refused, prompting Enloe’s late disclosure. Thus, West Hills did not
    address standing to object to expert witness testimony in the circumstances present here.
    Nor did that decision interpret the current version of the expert witness exchange statutes.
    Moreover, the question in this case is not whether Enloe was in a position to demand the
    mandatory sanction of exclusion provided for in section 2034.300. It was not. The
    question is whether Enloe’s inability to demand exclusion under section 2034.300 means
    the trial court lacked inherent authority to exclude testimony from Cottini’s expert
    witnesses.
    Former section 2037.5 provided: “Except as provided in Section 2037.6, upon
    objection of a party who has served his [or her] list of witnesses in compliance with
    Section 2037.2, no party required to serve a list of expert witnesses on the objecting party
    may call an expert witness to testify, except for purposes of impeachment, unless the
    information required by Section 2037.3 for such witness is included in the list served.”
    (Stats. 1978, ch. 1069, § 1, p. 3286.)
    27
    “ ‘Our Supreme Court has recognized that California courts have inherent powers,
    independent of statute, derived from two distinct sources: the courts’ “equitable power
    derived from the historic power of equity courts” and “supervisory or administrative
    powers which all courts possess to enable them to carry out their duties.” ’ [Citation.]
    ‘The court’s inherent power to curb abuses and promote fair process extends to the
    preclusion of evidence. Even without such abuses the trial court enjoys “broad authority
    of the judge over the admission and exclusion of evidence.” [T]rial courts regularly
    exercise their “basic power to insure that all parties receive a fair trial” by precluding
    evidence.’ ” (Continental Ins. Co. v. Superior Court (1995) 
    32 Cal. App. 4th 94
    , 107-108,
    quoting Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 
    200 Cal. App. 3d 272
    ,
    288.)
    We read nothing in section 2034.300 to limit the inherent power of the trial court
    to exclude from evidence the testimony of Cottini’s expert witnesses as a remedy for his
    unreasonable failure to comply with the expert witness exchange requirements prior to
    the cutoff date for expert discovery. The statute simply states that when certain
    conditions are met (i.e., the party seeking to call an expert witness has unreasonably
    failed to list the witness as an expert under section 2034.260, submit an expert witness
    declaration, produce reports and writings under section 2034.270, or make the expert
    available for a deposition), the appropriate remedy is exclusion of that expert’s testimony.
    Where the objecting party has made a complete and timely compliance with section
    2034.260, exclusion is mandatory. The statute does not state, as Cottini would have us
    hold, that where the objecting party’s compliance with section 2034.260 is untimely, the
    trial court is powerless to exclude such testimony.
    While not directly on point, we find Castaline v. City of Los Angeles (1975) 
    47 Cal. App. 3d 580
    to be instructive. There, in a personal injury case, the trial court
    excluded the testimony of a doctor who examined the plaintiff three days before trial.
    Finding no error, the Court of Appeal explained: “While we doubt that California Rules
    28
    of Court, [former] rule 222, prohibits parties from generating evidence -- as distinguished
    from initiating discovery -- within 30 days of trial, the defense point that the City would
    be unfairly surprised by the witness had merit. The City never produced any medical
    testimony and its counsel’s statements that after receiving answers to interrogatories on
    October 15, he cancelled a medical examination on behalf of the City stood
    unchallenged. Under all of these circumstances we cannot say that the court’s exclusion
    of [the doctor’s] testimony was not within its basic power to insure that all parties receive
    a fair trial.” (Id. at p. 592; see also 
    Boston, supra
    , 170 Cal.App.4th at p. 952 [“That we
    find no statutory prohibition against the continued creation of expert reports and writings
    after the specified date does not mean that a trial court is powerless to prevent or respond
    to abuse of expert witness discovery procedures. As a general matter, the trial court is
    empowered to exercise superintendency over discovery”].)
    Here, Cottini refused to disclose his expert witness information on the date
    specified in Enloe’s demand for exchange of this information. Instead, he filed a motion
    to disqualify Enloe’s trial counsel. Because the discovery statutes provide for “mutual
    and simultaneous exchange” of expert witness information (§ 2034.210, subd. (a)), Enloe
    also did not disclose its experts on this date and attempted to negotiate an alternative date
    for the exchange. When that failed, Enloe served a second demand for exchange of
    expert witness information. Cottini again refused to disclose his expert witnesses. Enloe
    then unilaterally disclosed. This disclosure, while late, was made before the close of
    expert witness discovery. Cottini does not argue he would not have had sufficient time to
    depose Enloe’s experts had he been pursuing discovery rather than his meritless
    disqualification motion. Cottini’s disclosure, on the other hand, was made after the close
    of expert witness discovery, providing no opportunity for Enloe to depose Cottini’s
    experts. In this case where the importance of discovery of experts is manifest, allowing
    Cottini’s expert witnesses to testify without any ability for Enloe to depose these
    witnesses would be the essence of unfair surprise. (See Zellerino v. Brown, supra, 235
    29
    Cal.App.3d at p. 1109.) The trial court had inherent authority to exclude the testimony of
    Cottini’s expert witnesses and did not abuse its discretion in exercising this authority
    based on the facts of this case.
    We also reject Cottini’s argument the trial court prejudicially erred in excluding
    the expert testimony in this case because Enloe’s “ ‘renewed’ motion in limine was
    actually an improper motion for reconsideration under the authority of [section] 1008.”
    “In Le Francois v. Goel (2005) 
    35 Cal. 4th 1094
    , our Supreme Court concluded that . . .
    section 1008 constitutionally ‘prohibit[s] a party from [seeking reconsideration] not
    based on new facts or law, but do[es] not limit a court’s ability to reconsider its previous
    interim orders on its own motion, as long as it gives the parties notice that it may do so
    and a reasonable opportunity to litigate the question.’ [Citation.] Justice Kennard filed a
    concurring and dissenting opinion in which she concluded the judgment should be
    affirmed, notwithstanding the trial court’s error in granting an impermissible motion for
    reconsideration, because no miscarriage of justice had been shown. [Citation.] The
    majority disagreed that the judgment should be affirmed ‘on the basis of harmless error’
    because ‘defendants have made no such harmless error argument, and thus plaintiffs have
    had no chance to argue against it. Moreover, the trial court did not inform the parties that
    it might change its previous ruling on its own motion and give them an opportunity to be
    heard, as it should have done. We do not know what would have occurred if it had done
    so. Under the circumstances, we think it best to remand the matter for the court and
    parties to follow proper procedure.’ [Citation.]” (People v. Edward D. Jones &
    Co. (2007) 
    154 Cal. App. 4th 627
    , 635-636.)
    Here, assuming Enloe’s renewed motion to exclude expert witness testimony was
    an impermissible motion for reconsideration, the trial court effectively informed the
    parties it was reconsidering its prior ruling on May 9, 2011, when it stated it was
    “inclined to go ahead and allow the experts,” but also indicated it would entertain
    argument on the issue. The next day, the trial court again reserved ruling on the renewed
    30
    motion and again stated it would entertain argument on the issue. Two days later, the
    parties argued the issue. On May 13, 2011, the trial court issued its ruling excluding the
    expert testimony. Based on these circumstances, we conclude the trial court gave Cottini
    an adequate opportunity to be heard. Nor has Cottini demonstrated any likelihood the
    trial court would have reached a different conclusion had it provided him more time to
    litigate the issue. Any error was harmless.
    Finally, Cottini argues the trial court should have imposed one of the “many less
    severe remedies it could have imposed short of excluding [his] experts.” We are not
    persuaded. Section 2034.300 evinces the Legislature’s considered judgment that the
    proper remedy for failure to comply with the expert witness exchange requirements is
    exclusion of the proffered expert testimony. (See Bonds v. 
    Roy, supra
    , 20 Cal.4th at p.
    148-149.) As we have explained, because Enloe did not fall within the description set
    forth in section 2034.300’s prefatory clause, it could not demand that the trial court
    exclude from evidence the testimony of Cottini’s expert witnesses. Nevertheless, it was
    within the trial court’s inherent authority to do so.
    Nor are we persuaded by Cottini’s reliance on New Albertsons, Inc. v. Superior
    Court (2008) 
    168 Cal. App. 4th 1403
    , a case in which the Court of Appeal held, in the
    absence of a violation of an order compelling Albertsons to produce certain video
    recordings, the trial court was not authorized to preclude Albertsons from introducing
    evidence of these recordings as a sanction for its failure to produce the recordings in
    response to an inspection demand. This decision was based on the language of sections
    2031.310 and 2031.320, which govern inspection demands and “provide for the
    imposition of an issue, evidence, or terminating sanction, . . . only ‘[i]f a party fails to
    obey an order compelling further response’ (§ 2031.310, subd. (e)) or ‘[i]f a party then
    fails to obey an order compelling inspection’ (§ 2031.320, subd. (c)).” (Id. at pp. 1423-
    1424.) The court further held these provisions also limited the inherent power of the trial
    court to impose an evidentiary sanction in the absence of an order compelling Albertsons
    31
    to produce the recordings. (Id. at pp. 1431-1434.) Acknowledging as a “general rule”
    that “misconduct committed in connection with the failure to produce evidence in
    discovery may justify the imposition of nonmonetary sanctions even absent a prior order
    compelling discovery” where the misconduct is “sufficiently egregious” or “where it is
    reasonably clear that obtaining such an order would be futile” (id. at p. 1426), the court
    concluded these circumstances did not apply to the misconduct before it. (Id. at p. 1428.)
    Here, as we have explained, while section 2034.300 did not compel exclusion of the
    expert testimony in this case, neither did it prevent the trial court from exercising its
    inherent authority to do so. We also conclude Cottini’s decision to wait until after the
    close of expert witness discovery to disclose his expert witnesses is a sufficiently
    egregious violation of the expert discovery rules to fall within the general rule set forth
    above.
    In sum, while section 2034.300, by its terms, did not mandate the exclusion of
    Cottini’s expert witness testimony because Enloe’s compliance with the expert witness
    exchange requirements was untimely, we do not read this section to preclude the trial
    court from excluding expert witness testimony for an egregious violation of the exchange
    requirements unless the objecting party’s compliance was flawless. We conclude that
    where the party objecting to expert testimony under section 2034.300 would be entitled to
    mandatory exclusion of such testimony but for his or her own failure to timely comply
    with the expert witness exchange requirements, exclusion of the expert testimony is not
    mandatory, but discretionary. Based on the facts of this case, there was no abuse of
    discretion.
    IV
    Instructional Error
    Finally, Cottini asserts the trial court prejudicially erred by instructing the jury not
    to consider “causation of [his] harms based upon common knowledge.” Any
    instructional error was harmless.
    32
    As relevant to the issue raised on appeal, the following Judicial Council of
    California Civil Jury Instructions (2011) (CACI) were delivered to the jury regarding
    Cottini’s medical negligence claim.
    CACI No. 500 stated: “Patrick Cottini claims that he was harmed by Enloe
    Medical Center’s medical negligence. To establish this claim, Patrick Cottini must prove
    each of the following elements through the expert testimony of Dr. Filbrandt and/or
    Nurse Altamirano: [¶] 1. That Enloe Medical Center was negligent; [¶] 2. That Patrick
    Cottini was harmed; and [¶] 3. That Enloe Medical Center’s negligence was a
    substantial factor in causing Patrick Cottini’s harm.” (Italics added.)
    CACI No. 501 stated: “Hospital Staff is negligent if they fail to use the level of
    skill, knowledge, and care in diagnosis and treatment that other reasonably careful
    Hospital Staffs would use in the same or similar circumstances. The level of skill,
    knowledge, and care is sometimes referred to as ‘the standard of care.’ [¶] You must
    determine the level of skill, knowledge, and care that other reasonably careful Hospital
    Staff would use in the same or similar circumstances based only on the expert testimony
    of Dr. Filbrandt and/or Nurse Altamirano.”
    CACI No. 514 stated: “A hospital is negligent if it does not use reasonable care
    toward its patients. A hospital must provide procedures, policies, facilities, supplies, and
    qualified personnel reasonably necessary for the treatment of its patients. [¶] When you
    are deciding whether Enloe Medical Center was negligent, you must base your decision
    only on the expert testimony of Dr. Filbrandt and/or Nurse Altamirano.”
    With respect to Cottini’s neglect of a dependent adult claim, the jury was
    instructed with CACI No. 3103 as follows:
    “Patrick Cottini claims that he was neglected by Enloe Medical Center’s
    employee or employees in violation of the Elder Abuse and Dependent Adult Civil
    Protection Act. To establish this claim, Patrick Cottini must prove all of the following:
    [¶] 1. That Enloe Medical Center had care or custody of Patrick Cottini; [¶] 2. That
    33
    Patrick Cottini was a dependent adult while he was in Enloe Medical Center’s care or
    custody; [¶] 3. That Enloe Medical Center’s employee or employees failed to use the
    degree of care that a reasonable person in the same situation would have used in: [¶]
    assisting in personal hygiene; [¶] providing medical care; or [¶] protecting Patrick
    Cottini from health and safety hazards; [¶] 4. That Patrick Cottini was harmed; and [¶]
    5. That Enloe Medical Center’s employee or employees’ conduct was a substantial
    factor in causing Patrick Cottini’s harm.” (Italics added.)
    With respect to both claims, the jury was instructed on causation with CACI
    No. 430 as follows: “A substantial factor in causing harm is a factor that a reasonable
    person would consider to have contributed to the harm. It must be more than a remote or
    trivial factor. It does not have to be the only cause of the harm.”
    We need not resolve whether the trial court erred in limiting the jury’s
    consideration of Cottini’s medical negligence claim to the expert testimony of
    Dr. Filbrandt and Nurse Altamirano because, as previously mentioned, the verdict form
    addressed only whether Enloe was liable under Cottini’s neglect of a dependent adult
    claim. The jury found: (1) “Patrick Cottini [was] a dependent adult while in Enloe
    Medical Center’s care or custody”; (2) “Patrick Cottini [was] in Enloe Medical Center’s
    care or custody”; and (3) “one or more of Enloe Medical Center’s employees fail[ed] to
    use that degree of care that a reasonable person in the same situation would have used in
    assisting in personal hygiene, provision of medical care, or health and safety hazards”;
    but that (4) “the employee’s conduct [was not] a substantial factor in causing harm to
    Patrick Cottini.” The instructions pertaining to this claim in no way limited the jury’s
    consideration to the expert testimony of Dr. Filbrandt and Nurse Altamirano. Thus, even
    assuming the medical negligence instructions were erroneous, the error was harmless
    because the jury’s verdict rests entirely on the neglect of a dependent adult claim upon
    which the jury was properly instructed.
    34
    DISPOSITION
    The judgment is affirmed. Costs on appeal are awarded to Enloe Medical Center.
    (Cal. Rules of Court, rule 8.278(a).)
    HOCH       , J.
    We concur:
    RAYE        , P. J.
    HULL        , J.
    35
    

Document Info

Docket Number: C068915

Citation Numbers: 226 Cal. App. 4th 401, 172 Cal. Rptr. 3d 4, 2014 WL 2115263, 2014 Cal. App. LEXIS 439

Judges: Hoch

Filed Date: 5/21/2014

Precedential Status: Precedential

Modified Date: 11/3/2024