Filed 5/20/14 Certified for publication 6/16/14 (order attached)




                                                    COPY

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




GEORGE STAUB et al.,                                                   C071500

                  Plaintiffs and Appellants,                        (Super. Ct. No.
                                                                   34200800029754-
         v.                                                          CUMMGDS)

JAMES KILEY et al.,

                  Defendants and Respondents.




         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


                                                         1
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


                                               2
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 May-
Thurner 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



                                              3
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.


                                                4
       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



                                               5
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.

                                              6
       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



                                              7
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. . . .”

                                              8
       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


                                              9
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

                                             10
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

                                              11
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

                                              12
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.




                                               13
                                       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.




                                             14
Filed 6/16/14
                               CERTIFIED FOR PUBLICATION


                                               COPY

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


GEORGE STAUB et al.,                                                  C071500

                  Plaintiffs and Appellants,                      (Super. Ct. No.
                                                                 34200800029754-
        v.                                                         CUMMGDS)

JAMES KILEY et al.,
                                                           ORDER OF PUBLICATION
                  Defendants and Respondents.




      APPEAL from a judgment of the Superior court of Sacramento County,
Trena H. Burger-Plavan, Judge. Affirmed.

        George and Julianne Staub, in pro. per., for Plaintiffs and Appellants.

       Thomas G. Minder & Associates, Thomas G. Minder and Randi L. Fujimoto
for Defendants and Respondents.




                                                 1
       THE COURT:
       The opinion in the above-entitled matter filed on May 20, 2014, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.




      BLEASE                , Acting P. J.



      HULL                  , J.



      DUARTE                , J.




                                             2
