Zellerino v. Brown

• Decision Date: 31 October 1991
• Citation: 1 Cal.Rptr.2d 222,235 Cal.App.3d 1097
• Parties: Debra ZELLERINO, Plaintiff and Appellant, v. Leroy BROWN, et al., Defendants and Respondents. Civ. C008771.
• Court: California Court of Appeals Court of Appeals

Page 222

1 Cal.Rptr.2d 222

235 Cal.App.3d 1097

Debra ZELLERINO, Plaintiff and Appellant, v. Leroy BROWN, et al., Defendants and Respondents.

Civ. C008771.

Court of Appeal, Third District, California.

Oct. 31, 1991.

Review Denied Feb. 20, 1992.

[235 Cal.App.3d 1100] Peter E. Mills, Sacramento, for plaintiff and appellant.

Longyear, O'Dea and Lavra, Bruce F. Reeves and Van Longyear, Sacramento, Citrus Heights, for defendant and respondent Leroy Brown.

David J. Bills, Diepenbrock, Wulff, Plant and Hannegan, Raymond M. Cadei, Kathleen R. Makel and Charity Kenyon, Sacramento, for defendant and respondent The Regents.

CARR, Acting Presiding Justice.

In this appeal the critical question is whether a party who makes a defective demand for the exchange of expert trial witnesses pursuant to Code of Civil Procedure section 2034, ¹ may obtain relief pursuant to section 473. Ancillary issues also tendered are whether the trial court abused its discretion in granting relief under section 473 by issuing an order compelling discovery and in granting an in limine motion when the plaintiff failed to comply with that order.

This is a medical malpractice case in which defendants, unaware that plaintiff had not retained any medical experts, served a discovery demand for an exchange of expert witnesses. The demand was early. When plaintiff served a written "objection" that the demand was untimely, defendants obtained relief by a motion pursuant to section 473. The trial court ordered plaintiff to disclose her expert witnesses. Plaintiff ignored the order. A few days before trial plaintiff retained and disclosed two expert witnesses. At trial, as a sanction for her abuse of the discovery system, the court refused to permit plaintiff to introduce the testimony of these experts. Nonsuit was granted to defendants. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Debra Zellerino (Zellerino) received medical treatment while a prisoner in the Sacramento County jail. She filed a suit for medical malpractice and violation of civil rights by form complaint on March 8, 1984, naming as defendants the Regents of the University of California (Regents), the County of Sacramento (County) and Dr. Leroy Brown (Brown). Apparently because the complaint lacked a certificate of merit (former § 411.30), an amended complaint was filed on March 10, 1988. Neither complaint describes the alleged injury. The certificate of merit filed with the amended complaint states Zellerino's attorney, Peter E. Mills, personally reviewed the facts and consulted with a licensed physician and surgeon who "is knowledgable [sic ] of the kind of injury sustained by plaintiff herein."

The civil rights cause of action was withdrawn and is not at issue herein. The trial court granted County judgment on the pleadings based on governmental immunity (Gov.Code, § 844.6,) and County is not a party on appeal.

Zellerino moved to advance the case because the five-year mandatory dismissal statute (§ 583.310) would run on January 17, 1990. The motion to advance was granted and on September 27, 1989, the clerk mailed notice of the trial setting conference set for October 10, 1989 (further unspecified dates are to 1989). Trial was set to begin on January 8, 1990.

On October 6, the Regents served a demand for exchange of expert witness lists, specifying the date of exchange as October 26. This demand complied with the time limits contained in a local Accelerated Civil Trial (ACT) project rule, which required the demand be sent between the date notice of the trial setting conference is mailed (here, September 27) and 15 days thereafter. (Form.Super.Ct. Sacramento County Rules, rule 1614.5(a); see form. Gov.Code, § 68612).

The ACT project applies to cases filed after January 1, 1988, and other cases in the discretion of the court. (Super.Ct. Sacramento County Rules, rule 1601(a).) Since the original complaint was filed in 1984, this case was not subject to ACT and the local rule. The demand did not comply with the discovery act, which provides that a demand may be made "After the setting of the initial trial date...." (§ 2034, subd. (a), emphasis added; see 3 DeMeo, Cal. Deposition and Discovery Practice (1991) § 64.12, p. 64-11, hereafter DeMeo.) Since the trial date was set on October 10, the October 6 demand was four days early.

Zellerino did not move for a protective order in response to the premature demand, but, on October 30, served by mail an "Objection to [Regent's] Demand for Exchange of Expert Witness List ... and Plaintiff's Request that Defendant Withdraw its Demand for Exchange of Experts."

On November 15, the Regents filed a motion for relief from their mistake pursuant to section 473 together with a motion to compel the exchange of experts.

In support of the motion for relief, Regents' counsel filed a declaration that he mistakenly believed the case fell within the ambit of ACT and the local rules pertinent thereto and prepared the demand accordingly; that he discovered the mistake on October 26 and sought to resolve the matter informally. He contacted counsel for Brown, who in turn agreed to disclose experts on the date prescribed by section 2034 (November 20) and who agreed to contact Mr. Mills, Zellerino's counsel. According to Brown's counsel's declaration, he spoke with Mr. Mills' secretary, and learned that Mr. Mills had already calendared the disclosure for November 20. He told Mr. Mills' secretary "I was relying on that conversation and ... I asked her to have Mr. Mills call me if he had any problems with [disclosing on November 20]."

Mr. Mills did not call either attorney. After receipt of Zellerino's "Objection," counsel for the Regents placed several telephone calls to Mr. Mills' office but did not speak to him until November 8, at which point Mr. Mills told him he would not comply with the discovery request.

The motion correctly stated October 30 was the last day to serve the demand. (§ 2034, subd. (b).)

In the motion for relief counsel asserted that both defense counsel "had been lulled into believing that Plaintiff had agreed to exchange expert witness lists on November 20[.] Had Defendants been aware of Plaintiff's objection and refusal to cooperate with regard to the exchange of expert witness lists, a second Demand for Exchange could have been served within the [section] 2034 time limits."

In opposition to the motion Zellerino asserted that since defense counsel knew of the mistake by October 26 and had until October 30 to file a timely motion, the failure to bring a timely motion was inexcusable; and that section 473 did not authorize relief in these circumstances. Zellerino claimed prejudice in that she would have to participate in the time and expense of "any expert depositions to which plaintiff is not presently exposed."

The court found no prejudice to Zellerino caused by the early demand and granted the motion for relief. An order compelling the exchange of experts that day, November 20, was granted. Zellerino petitioned for writ relief but no stay of this order was obtained.

At the mandatory settlement conference on December 21, Mr. Mills refused to say whether Zellerino had any experts. By letter from Mr. Mills dated December 28, he informally advised defendants of the names of the experts and stated that Zellerino had had no experts to disclose on November 20. Zellerino's position was that the order of November 20 was ineffective and that the defendants were not entitled to any information about the expert witnesses. Zellerino mailed her list of experts on January 2, 1990, providing declarations as to the two experts she had retained, but provided no reports or writings.

On the first day of trial, January 8, 1990, defendants moved to preclude Zellerino from introducing expert testimony on the ground that Zellerino had violated the court order of November 20. (§§ 2023, subd. (b)(3), 2034, subd. (j).) In opposition to the motion, Zellerino again urged that the expert demand was untimely. She conceded defendants had complied with the order to disclose experts on November 20 but did not explain why she waited six weeks before complying with the court order, except to state that Mr. Mills was in trial on November 20, "and was unable to both find experts and disclose them in one day." No explanation was given why experts had not been retained sometime in the previous five years. Zellerino had not filed a motion for leave to submit tardy expert witness information as required by section 2034, subdivision (l ).

The trial court granted defendants' motion to exclude Zellerino's expert witnesses and subsequently granted a nonsuit to defendants. The order granting the nonsuit states that plaintiff's offer of proof made following the order excluding expert witnesses was deficient in that there was no evidence of the standard of care.

DISCUSSION

There are three issues tendered by this appeal: (1) are section 473 proceedings available for relief from an untimely demand for expert trial witnesses under section 2034, (2) did the court abuse its discretion in granting the motion to compel discovery and (3) did the court abuse its discretion in granting the in limine motion to exclude expert trial testimony.

I. RELIEF UNDER SECTION 473

Section 473 provides in part:

"The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading or proceeding ... by correcting a mistake....

"...

"The court may, upon such terms as may be just, relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."

Zellerino contends this section cannot relieve a propounding party from failure to file a timely demand for expert witnesses, as the demand is not a " 'judgment, order, or other proceeding taken against' " the proponent. A broader question is whether any ...