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SOUTHERN CALIFORNIA EDISON COMPANY v. WALKER

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Court of Appeal, Fourth District, Division 3, California.

SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner, v. SUPERIOR COURT of California, County of Orange, Respondent; Frederick K. WALKER, Real Party In Interest.

G002913.

Decided: May 16, 1986

Chase, Rotchford, Drukker & Bogust, Henry J. Bogust, David Clark, G. Arthur Meneses, Los Angeles, for petitioner. No appearance for respondent. Jeremy H. West, Villa Park, for real party in interest.

OPINION

Southern California Edison Company (Edison) challenges an order barring its expert witnesses from testifying at trial.

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Real party in interest Frederick K. Walker was injured when the radio antenna he was trying to remove from his residence came into contact with electric wires owned by Edison.   Walker sued Edison.   On May 18, 1984, Edison served Walker with a request to exchange expert witness lists pursuant to Code of Civil Procedure section 2037.1  After the lists were exchanged, Walker wrote to Edison twice, stating Edison's list did not comply with section 2037.3 2 and requesting that Edison amend it accordingly.   Edison failed to reply.   However, Walker did not attempt to depose any of Edison's designated experts.

Thereafter, Walker moved for an order barring Edison's experts from testifying at trial pursuant to section 2037.5.3  The superior court granted the motion after having first concluded Walker's list complied with section 2037.2 4 and that Edison's list did not comply with section 2037.3.

Edison moved for reconsideration and for relief pursuant to section 473.   The superior court granted the motion in order to determine whether Walker's list also complied with section 2037.3.   The court found Walker's expert witness list did comply and that Walker could thus object to Edison's list.

In its motion for reconsideration, Edison also requested leave to file an amended expert witness list and offered to make the listed experts available for depositions at no expense to Walker.   Edison further agreed to continue the trial to accomplish any unfinished discovery.   The motion was denied and Edison filed this petition.   We granted a temporary stay pending resolution on the merits.

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Section 2037 et seq. allows a party to precipitate the exchange of expert witness lists by making a demand to do so.   Under this statutory scheme, Walker was entitled to object to Edison's expert witness list as long as his own list was served “in compliance with Section 2037.2․”  (§ 2037.5.)

 Edison argues Walker's list did not comply with section 2037.2 because it was signed by Walker's current counsel before he had formally substituted into the action as attorney of record.5  Additionally, Edison claims service of the expert witness list was defective in that the proof of service contained only abbreviated addresses rather than complete mailing addresses.   These contentions are without merit.

Nothing in section 2037.2 requires the expert witness list be signed by counsel of record or by anyone else.   Further, even if the formal proof of service was defective, the person who deposited copies of the list in the mail declared the envelopes had been fully addressed and the addresses had been abbreviated only on the proof of service.   Thus, actual service was proper.

Citing Sprague v. Equifax Inc. (1985) 166 Cal.App.3d 1012, 213 Cal.Rptr. 69, Edison next argues Walker's witness list must also meet the requirements of section 2037.3 in order to comply with section 2037.2 and gain for Walker the statutory standing necessary to challenge Edison's list.   While Sprague supports this proposition, we disagree with that aspect of the opinion.

The Sprague court concluded, with little discussion, “that compliance with section 2037.2 requires inclusion of a statement of the general substance of the [expert's contemplated trial] testimony in compliance with section 2037.3.”  (Sprague v. Equifax Inc., supra, 166 Cal.App.3d at p. 1040, 213 Cal.Rptr. 69.)   The Sprague court apparently relied on West Hills Hospital v. Superior Court (1979) 98 Cal.App.3d 656, 159 Cal.Rptr. 645.   However, West Hills Hospital merely construed the literal language of section 2037.2 and determined only that a party does not have standing to seek sanctions under section 2037.5 if its own witness list is filed after the date of exchange.  (Id., at p. 660, 159 Cal.Rptr. 645.)   The decision simply does not address or support the broader proposition for which Sprague cites it.

 By its terms, section 2037.5 predicates standing only upon “compliance with section 2037.2.”   If the Legislature had intended to require compliance with section 2037.3 as well as with section 2037.2, we believe it would have said so.   Furthermore, we note the ends of discovery are promoted by permitting a party who has properly served his list to timely challenge the sufficiency of another's list, since defects in either list can and should be cured before trial.   It follows Walker was entitled to object to Edison's expert witness list because his own list complied with section 2037.2, irrespective of the requirements of section 2037.3.

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Edison finally contends imposition of the penalty imposed by the trial court was inappropriate and effectively gutted its defense.   We agree, and further caution this ultimate sanction is appropriate only after all other reasonable attempts to secure compliance with the statutory requirements have been exhausted.

Section 2037.5 mandates the exclusion of expert witnesses, except for purposes of impeachment, “unless the requirements of Section 2037.3 for [those] witness [es] have been met.”   Section 2037.3 requires “[e]ach witness list ․ include the name and business or residence address of each expert witness whom the party expects to call in person or through deposition and a brief narrative statement of the qualifications of such witnesses and the general substance of the testimony which the witness is expected to give․”

However, neither section 2037.5 nor section 2037.3 specifies when or how the section 2037.3 requirements set forth above must be met in order to forestall an order barring expert testimony.   Other courts have recognized the “general substance of the testimony” requirement may be fulfilled through subsequent pretrial depositions of listed witnesses.  (See Kennemur v. State of California (1982) 133 Cal.App.3d 907, 919, 184 Cal.Rptr. 393.)

Here, however, Walker never attempted to complete his trial preparation.   After demanding and receiving a list of Edison's experts, and then notifying Edison that its list was deficient, Walker did nothing for over one year.   He did not attempt to schedule any depositions nor did he seek relief from the trial court by motion to compel a more complete list.   Only after the matter was assigned to trial did he move to exclude expert witnesses on the grounds Edison's list did not enumerate the designated witnesses' street addresses (only the city and county were listed) and did not contain “a brief narrative statement․ of the general substance of the testimony.”  (§ 2037.3.)

 It is clear Edison's expert witness list does not satisfy the literal mandates of section 2037.3.   The list merely identifies the general area of expertise of each of Edison's experts (e.g., “psychiatrist,” “psychologist,” “rehabilitation expert,” etc.) and states only that each expert “will testify in the area of his/her expertise.”   Further, Edison acted in a most cavalier manner in not responding to Walker's complaints that its list was deficient.   Such conduct cannot be condoned.   Common courtesy and legal professionalism required Edison at least acknowledge Walker's letters and (hopefully) attempt to correct the deficiencies.   However, under all the circumstances, the trial court abused its discretion when it made its order barring Edison from presenting (except for impeachment purposes) any expert testimony at trial.

 The predominate purpose of section 2037 et seq. is to provide litigants the opportunity to engage in meaningful pretrial discovery so as to promote settlement and avoid some of the uncertainties of trial.   Yet Walker did nothing to pursue these goals.   Walker's conduct perverts the clear intent of the very statute he seeks to enforce.   The information provided by Edison was sufficient to allow Walker to attempt further discovery.   Depositions certainly could have been arranged.

 We are mindful that by failing to provide a brief narrative statement of the intended testimony, Edison may have made it more difficult for Walker to determine whether a deposition was appropriate.   However, faced with this dilemma, a litigant must follow time-honored procedures and make a motion for a trial court order compelling more complete compliance with section 2037 et seq.   Only after a party has exhausted all reasonable attempts to secure further discovery is the imposition of the ultimate statutory sanction appropriate.

While the statutes themselves (§ 2037 et seq.) do not explicitly provide for other or interim relief, they certainly do not prohibit it and trial courts routinely grant requests for further discovery in lieu of issuing blanket orders barring all expert testimony for failure to directly comply with section 2037.3.   This practice has been tacitly approved.   In Kennemur v. State of California, supra, 133 Cal.App.3d 907, 184 Cal.Rptr. 393, the testimony of a listed expert witness was barred because the opposing party had never been given the opportunity to discover the expert's intended testimony, either by way of a witness list statement pursuant to section 2037.3 or by deposition testimony.  “When appropriate demand is made for exchange of expert witness lists, the party is required to disclose not only the name, address and qualifications of the witness but the general substance of the testimony the witness is expected to give at trial.  (§ 2037.3.)   In our view, this means the party must declare either in his witness exchange list or at his expert's deposition, if the expert is asked, the substance of the facts and the opinions which the expert will testify to at trial.”

(Id., at p. 919, 184 Cal.Rptr. 393;  original emphasis.   See also id. at p. 918, 184 Cal.Rptr. 393, fn. 5.)

 Here, Walker's attempt to pursue discovery was not completely frustrated by Edison;  rather, Walker never instituted discovery in the first place.   A party is not entitled to forgo pretrial discovery because it perceives a tendered expert witness list to be deficient and then move to bar his opponent's expert testimony.   That is gamesmenship, which cannot be tolerated.   Walker should have either set the depositions of the listed witnesses and secured their opinions, or sought leave of court for an order requiring further statutory disclosures.

We also recognize the time limitations which exist in all CCP § 2037 et seq. discovery;  however, such constraints can easily be accomodated by the trial court.   It is not uncommon for discovery to be allowed up to the date set for trial and California Rules of Court, rule 333 6 specifically accomodates the problems of such discovery.   Further, we would expect a trial court to allow additional discovery when an incomplete witness list has necessitated additional time delays.   Here the trial court should have adopted the relief suggested by Edison in its motion for reconsideration, and ordered Edison to produce the listed experts for deposition at Walker's convenience and Edison's non-recoverable expense.

Let a peremptory writ of mandate issue directing respondent to vacate its order granting Walker's motion to bar expert testimony and to enter a new order denying that motion and allowing appropriate pretrial discovery consistent with the views expressed herein.   Our stay is dissolved when this opinion becomes final.

FOOTNOTES

1.   Subsequent statutory references are to the Code of Civil Procedure.  Section 2037, subdivision (a) provides in part:  “Not later than the 10th day after a trial date is selected or 70 days prior to the date set for the commencement of trial, whichever is later, any party may serve on any party a demand to exchange lists of expert witnesses․”

2.   Section 2037.3 provides:  “Each witness list shall include the name and business or residence address of each expert witness whom the party expects to call in person or through deposition and a brief narrative statement of the qualifications of such witnesses and general substance of the testimony which the witness is expected to give.”

3.   Section 2037.5 states:  “Except as provided in Section 2037.6, upon objection of a party who has served his 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 requirements of Section 2037.3 for that witness have been met.”

4.   Section 2037.2 provides:  “[¶] Not later than the date of exchange:  [¶] (a) A party who served a demand shall serve his or her list and discoverable reports and writings upon each party on whom he or she served the demand.  [¶] (b) Each party on whom a demand is served shall serve his or her list upon the party who served the demand.”

5.   The substitution of attorney was served on Edison prior to service of the list;  however, it was not actually filed until after the list was served.

6.   California Rules of Court, rule 333 provides:  “All parties shall be entitled as a matter of right to complete discovery proceedings until 30 days before the date set for the trial of the case and to have motions concerning discovery heard until 15 days before the date set for the trial of the case.   The right to complete discovery proceedings or have a motion concerning discovery heard closer to the trial date shall be within the discretion of the court, except that the rights shall exist until 10 days before the date set for trial if the discovery pertains to a witness identified pursuant to Code of Civil Procedure section 2037.   In exercising its discretion the court shall take into consideration the necessity and reasons for discovery, the diligence or lack of diligence of the party seeking the discovery or order and the reasons for not having completed the discovery or granting the order will prevent the case from going to trial on the day set or otherwise interfere with the trial calendar or result in prejudice to any party, and any other matter relevant to the request.   This rule shall not preclude or limit voluntary exchanges or information or discovery by stipulation of the parties or enforcement of the stipulation, but in no event shall these exchanges or stipulations require a court to grant a continuance of trial.   As used in this rule, discovery is completed on the day responses are due or the day a deposition begins.“This rule does not apply to proceedings pursuant to chapter 4 of title 3 of part 3 of the Code of Civil Procedure beginning with section 1159.”

TROTTER, Presiding Justice.

SONENSHINE and WALLIN, JJ., concur.

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