Ludwig v. Hacienda Paraiso CA2/7
B259928
| Cal. Ct. App. | Aug 15, 2016Background
- Plaintiff Arlene Ludwig tripped on a single step at D’Cache restaurant and sued owner Hacienda Paraiso (and principals) for negligence; after a court trial she was awarded nearly $9.93 million.
- Both sides timely designated retained and nonretained experts for liability and damages; Hacienda Paraiso designated liability experts (Solomon, Stein, Tyson) and damages experts (Patterson, Roughan, Weiner).
- Extensive discovery disputes, scheduling conflicts, repeated continuances, and serial bankruptcies by defendants disrupted deposition scheduling; some depositions occurred but many did not.
- Ludwig moved in limine to exclude five Hacienda Paraiso experts for failing to make them available for deposition; the trial court granted exclusion under Code Civ. Proc. §2034.300(d).
- At trial Hacienda Paraiso presented one liability expert (Tyson) and other evidence; the court found defendant negligent but 40% comparative fault, then awarded large future economic and noneconomic damages based solely on plaintiff’s experts.
- On appeal the Court of Appeal reversed only as to exclusion of damages experts, holding exclusion of damages experts was prejudicial and remanding for a new trial on future economic and noneconomic damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hacienda unreasonably failed to make experts available for deposition under CCP §2034.300(d) | Hacienda delayed and invoked bankruptcy incorrectly, so its experts should be excluded | Hacienda timely disclosed experts, repeatedly offered many deposition dates, and bankruptcy stays justified some cancellations; plaintiff contributed to delays and strategically refused dates | Exclusion was an abuse of discretion: Hacienda did not unreasonably fail to make experts available (court abused discretion) |
| Whether party must ensure opposing party actually takes depositions or move to extend discovery cutoff | Plaintiff contended defendant had duty to ensure depositions occurred and should have moved to extend cutoff | Defendant argued statute requires only that experts be made available; parties may agree to extend discovery without court motion | Held: No duty to ensure depositions actually occur; no requirement that defendant must move to extend cut-off |
| Prejudice: Was exclusion of liability experts reversible? | Exclusion prejudiced Hacienda’s defense on negligence and comparative fault | Testimony would have been cumulative of Tyson, photographs, and manager testimony | Harmless error as to liability experts (testimony would have been cumulative) |
| Prejudice: Was exclusion of damages experts reversible? | Exclusion left Hacienda with no evidence to contradict plaintiff’s large future damages figures | Damages experts would have offered substantially lower future medical and lost-earnings estimates | Reversible error: exclusion of damages experts was prejudicial; remand for new trial on future economic and noneconomic damages |
Key Cases Cited
- Staub v. Kiley, 226 Cal.App.4th 1437 (Cal. Ct. App.) (reasonableness inquiry examines both parties’ conduct; abuse-of-discretion review)
- Boston v. Penny Lane Centers, Inc., 170 Cal.App.4th 936 (Cal. Ct. App.) (meaningful opportunity to depose expert and strategic choices by opposing party are relevant)
- Zellerino v. Brown, 235 Cal.App.3d 1097 (Cal. Ct. App.) (exclusion appropriate where near-total noncompliance and comprehensive thwarting of discovery)
- Waicis v. Superior Court, 226 Cal.App.3d 283 (Cal. Ct. App.) (pattern of rescheduling and violation of court order can justify exclusion)
- Cottini v. Enloe Medical Center, 226 Cal.App.4th 401 (Cal. Ct. App.) (late disclosure deliberately used to avoid deposition can justify exclusion)
- Fatica v. Superior Court, 99 Cal.App.4th 350 (Cal. Ct. App.) (continuation of expert deposition during trial as alternative to exclusion)
- Helfend v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 1 (Cal. 1970) (economic damages can inform noneconomic damages assessment)
- Corenbaum v. Lampkin, 215 Cal.App.4th 1308 (Cal. Ct. App.) (economic damages used as a reference in arguing noneconomic damages)