Perry v. Bakewell Hawthorne, LLC

Filed 2/23/17

IN THE SUPREME COURT OF CALIFORNIA

WILSON DANTE PERRY, )

)

Plaintiff and Appellant, )

) S233096

v. )

) Ct.App. 2/2 B264027

BAKEWELL HAWTHORNE, LLC, )

) Los Angeles County

Defendant and Respondent. ) Super. Ct. No. BC500198

____________________________________)

After a trial date is set, a party may demand a simultaneous exchange of

expert witness information by all parties. (Code Civ. Proc., § 2034.210.)1

Unreasonable failure to respond makes the noncomplying party‟s expert opinion

inadmissible, unless the court grants relief. (§§ 2034.300, 2034.620, 2034.720.)

The question here is whether this exclusionary rule applies at the summary

judgment stage. The expert witness disclosure statutes provide no answer.

However, section 437c, subdivision (d) requires that affidavits and declarations

submitted in summary judgment proceedings “set forth admissible evidence.”

Therefore, we hold that when the court determines an expert opinion is

inadmissible because disclosure requirements were not met, the opinion must be

excluded from consideration at summary judgment if an objection is raised.

1 Further statutory references are to the Code of Civil Procedure.

1

Plaintiff Wilson Dante Perry sued Bakewell Hawthorne, LLC and JP

Morgan Chase Bank, NA, claiming he was injured in a fall on property owned by

Bakewell and leased by Chase. Chase demanded an exchange of expert witness

information, but Perry made no disclosure. In response to Bakewell‟s motion for

summary judgment, however, he submitted the declarations of two experts opining

that the stairs he fell on were in disrepair and did not comply with building code

and industry standards. The trial court sustained Bakewell‟s objection to the

introduction of these declarations because Perry had failed to disclose the experts.

Summary judgment was granted. Perry moved for reconsideration, but the motion

was never heard because it was discovered that the law license of Perry‟s counsel

had been suspended. After judgment was entered for Bakewell, Perry substituted

counsel and unsuccessfully moved for permission to designate his experts.

The Court of Appeal affirmed the judgment in Bakewell‟s favor.

DISCUSSION

Perry relies on Kennedy v. Modesto City Hospital (1990) 221 Cal.App.3d

575 (Kennedy). There, the trial court entered summary judgment for the

defendants after refusing to consider the declaration of a plaintiff‟s expert who had

not been timely designated. (Id. at pp. 578-579.) The Court of Appeal reversed.

As we explain, its analysis was flawed.

The Kennedy court noted that the timing requirements of the expert witness

disclosure statutes and the summary judgment statute are not coordinated. Unless

the court orders otherwise, summary judgment motions are not made until 60 days

after the opposing party‟s general appearance, and are heard no later than 30 days

before trial. (Kennedy, supra, 221 Cal.App.3d at p. 581; see § 437c, subd. (a)(1)

& (3).) A demand for expert witness information, on the other hand, must be

made no later than the 10th day after the initial trial date is set, or 70 days before

that trial date, whichever is nearer the date. The exchange must occur 20 days

2

after the demand or 50 days before the initial trial date, whichever is later. As

with summary judgment motions, the court may alter the deadlines on a showing

of good cause. (Kennedy, at p. 580; see §§ 2034.220, 2034.230.)2

Without a court order, the period for demanding “and exchanging expert

witness information . . . , which is keyed to the initial trial date, would ordinarily

preclude making and determining a motion for summary judgment after the . . .

exchanges have been completed. The summary judgment motion was noticed and

heard in this case within this time frame only because the trial judge continued the

initial trial date.[3] Normally a summary judgment will be heard and determined

before the exchange of expert witness information is completed . . . . Thus,

considering the timing alone, there is no ascertainable [legislative] intent to make

the exclusion of expert testimony applicable to a summary judgment proceeding.”

(Kennedy, supra, 221 Cal.App.3d at p. 581.)

Kennedy emphasized the various references in the expert witness disclosure

statutes to “ „expert trial witnesses,‟ ” “ „evidence at the trial,‟ ” testimony “ „at

the trial,‟ ” and “ „the trial court‟ ” that “ „shall exclude from evidence the expert

opinion‟ ” offered by a party who has failed to make the required disclosure.

(Kennedy, supra, 221 Cal.App.3d at p. 582, italics added; see, e.g., §§ 2034.210,

2034.260, 2034.300.) “We infer from these provisions the Legislature had in mind

the exclusion of expert testimony offered by noncomplying parties at trial, not at a

pretrial proceeding. [¶] Admissibility at trial is not necessarily the same as

admissibility at a summary judgment proceeding. For example, a declaration is

2 The statutes have been renumbered since Kennedy was decided, but the

relevant provisions remain the same.

3 In this case the trial date was also continued. As Perry and an amicus

curiae observe, this is not an unusual occurrence.

3

not admissible at trial, but is expressly made admissible by section 437c in a

summary judgment proceeding. So too, evidence made inadmissible at trial by

reason of the express procedural bar [of the disclosure statutes] does not

necessarily make the evidence inadmissible in a summary judgment proceeding.”

(Kennedy, at p. 582.) The court further reasoned that the plaintiff might be able to

overcome the bar by seeking leave to amend her disclosure or make a tardy

disclosure. (Id. at p. 583; see §§ 2034.610, 2034.710.)

The Kennedy court pronounced that it wrote “on a clean slate” because no

case law or statutory history bore on the issue at hand. (Kennedy, supra, 221

Cal.App.3d at p. 581.) But the issue had been addressed, albeit briefly, in Mann v.

Cracchiolo (1985) 38 Cal.3d 18 (Mann). There the plaintiff did not timely

designate an expert, and the trial date was continued. (Id. at pp. 26-27.) In this

court the principal issue was the sufficiency of the expert‟s declaration, but the

Mann defendants also argued that the declaration had to be disregarded at

summary judgment because the expert could not testify at trial. The Mann court

noted that under the disclosure statutes, “the court upon such terms as may be just

may permit a party to call an expert witness not included in the list of expert

witnesses so long as the court finds that the party made a good faith attempt to list

expert witnesses, that the party has given notice to the opposing party . . . , and

that as of the date of the exchange of lists the party would „not in the exercise of

reasonable diligence have determined to call such witness.‟ [Fn. omitted.]

Because the trial court might choose to grant relief, the court ruling on the motions

4

for summary judgment could not assume that it would not.” (Id. at pp. 39-40; see

§ 2034.620, subd. (c)(1).)4

Mann did not mention the requirement that “[s]upporting and opposing

affidavits or declarations” submitted on a summary judgment motion “shall set

forth admissible evidence.” (§ 437c, subd. (d).) The Kennedy court quoted this

provision but did not discuss it. (Kennedy, supra, 221 Cal.App.3d at p. 581.) The

condition that an expert‟s declaration must set out admissible evidence, however,

has determinative importance. Even if all the references to “trial” in the expert

witness disclosure statutes are read strictly, including the specification that the

“trial court” must exclude the testimony of an undisclosed expert (§ 2034.300), the

summary judgment statute still requires the evidence provided in declarations to

be admissible at trial. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761

(Bozzi); Towns v. Davidson (2007) 147 Cal.App.4th 461, 472; 6 Witkin, Cal.

Procedure (5th ed. 2008) Proceedings Without Trial, § 226, pp. 667-668; Weil &

Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group

2015) ¶ 10:124 et seq., p. 10-50 et seq.) Declarations themselves are not

ordinarily admissible because they are hearsay. But the Kennedy court erred when

it suggested that the evidence contained in summary judgment declarations need

not be admissible at trial. (Kennedy, at p. 582.)

Both Mann and Kennedy reasoned that the appellants before them might

have been able to avoid the consequences of their failure to designate an expert.

(Mann, supra, 38 Cal.3d at p. 39; Kennedy, supra, 221 Cal.App.3d at p. 583.)5

4 Mann examined an earlier version of the disclosure statutes than the one

before the Kennedy court. The differences in the various versions, including those

in effect today, do not affect our analysis.

5 The Court of Appeal below distinguished Kennedy on the ground that there

the plaintiff might have been able to remedy her failure to comply with the

(footnote continued on next page)

5

Under section 2034.610, the court may permit amendment of an expert witness

disclosure, if section 2034.620‟s conditions stated are met. Similarly, an untimely

disclosure may be allowed under section 2034.710 if the statutory conditions are

satisfied. (§ 2034.720.) But these remedies are available to a party before

summary judgment, and should be invoked as soon as the party discovers the need

to submit a declaration by a previously undisclosed expert.6 Unless the court

grants relief, the declaration contains inadmissible evidence, excludable upon

objection if the failure to disclose was unreasonable. A court ruling on a summary

judgment motion “shall consider all of the evidence set forth in the papers, except

that to which objections have been made and sustained.” (§ 437c, subd. (c), italics

added.) Here, the trial court sustained Bakewell‟s objection to Perry‟s expert

testimony because he unreasonably failed to make the required disclosure.7

When Mann and Kennedy were decided, summary judgment was more

disfavored than it is today. The Mann court said that “[t]he summary judgment

procedure, inasmuch as it denies the right of the adverse party to a trial, is drastic

and should be used with caution.” (Mann, supra, 38 Cal.3d at p. 35.) The

(footnote continued from previous page)

disclosure requirements. The court deemed Perry‟s failure irremediable because

his postjudgment application for relief had been rejected by the trial court.

6 If the time limit on submitting opposition to a summary judgment motion

(§ 437c, subd. (b)(2)) prevents a party from obtain a ruling on a motion for relief

under sections 2034.610 or 2034.710, the party may seek a continuance for that

purpose under section 437c, subdivision (h).

7 It does not appear that Perry‟s counsel relied on Kennedy or Mann in the

trial court. They were not cited in the motion for reconsideration that was filed

after summary judgment. Counsel has not made the subsequent application for

leave to designate experts a part of the record on appeal. Nor is there any

indication that counsel ever attempted to persuade the trial court that the failure to

disclose Perry‟s experts had been reasonable.

6

Kennedy court commented that “[t]he purpose of the summary judgment statute is

to eliminate the necessity of trying sham and meritless cases [citation], not to stop

facially meritorious cases at the summary judgment stage by reason of a

procedural bar which at trial may be overcome.” (Kennedy, supra, 221

Cal.App.3d at pp. 582-583.) But section 437c was significantly changed when

amendments in 1992 and 1993 brought it closer to its federal counterpart, “in order

to liberalize the granting of [summary judgment] motions.” (Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 848 (Aguilar); see Weil & Brown, Cal.

Practice Guide: Civil Procedure Before Trial, supra, ¶ 10:278, pp. 10-127-128.)

Summary judgment is now seen as “a particularly suitable means to test the

sufficiency” of the plaintiff‟s or defendant‟s case. (Caldwell v. Paramount

Unified School Dist. (1995) 41 Cal.App.4th 189, 203; accord, City of Monterey v.

Carrnshimba (2013) 215 Cal.App.4th 1068, 1080; see Aguilar, at p. 855; Bozzi,

supra, 186 Cal.App.4th at pp. 760-761.)

The results in Mann and Kennedy reflect the more restrictive approach to

summary judgment prevailing when they were decided. Nevertheless, it has

always been “[t]he purpose of the law of summary judgment . . . to provide courts

with a mechanism to cut through the parties‟ pleadings in order to determine

whether, despite their allegations, trial is in fact necessary to resolve their

dispute.” (Aguilar, supra, 25 Cal.4th at p. 843, citing Molko v. Holy Spirit Assn.

(1988) 46 Cal.3d 1092, 1107.) And section 437c has always required the evidence

relied on in supporting or opposing papers to be admissible. (See Reid v. Google,

Inc. (2010) 50 Cal.4th 512, 528.) The Mann and Kennedy courts overlooked the

significance of this requirement.

We overrule Mann v. Cracchiolo, supra, 38 Cal.3d 18, to the extent it is

inconsistent with this opinion, and disapprove Kennedy v. Modesto City Hospital,

supra, 221 Cal.App.3d 575. A party may not raise a triable issue of fact at

7

summary judgment by relying on evidence that will not be admissible at trial.

(See § 437c, subd. (c).) When the time for exchanging expert witness information

has expired before a summary judgment motion is made, and a party objects to a

declaration from an undisclosed expert, the admissibility of the expert‟s opinion

can and must be determined before the summary judgment motion is resolved.

DISPOSITION

The Court of Appeal‟s judgment is affirmed.

CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.

WERDEGAR, J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Perry v. Bakewell Hawthorne, LLC

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 244 Cal.App.4th 712

Rehearing Granted

__________________________________________________________________________________

Opinion No. S233096

Date Filed: February 23, 2017

__________________________________________________________________________________

Court: Superior

County: Los Angeles

Judge: Gregory Keosian

__________________________________________________________________________________

Counsel:

Howard Posner; Bral & Associates and S. Sean Bral for Plaintiff and Appellant.

Schumann | Rosenberg, Kim Schumann and Jeffrey P. Cunningham for Defendant and Respondent.

Horvitz & Levy, Steven S. Fleischman, Joshua C. McDaniel; Gordon & Rees and Don Willenburg for

Association of Southern California Defense Counsel and Association of Defense Counsel of Northern

California and Nevada as Amici Curiae on behalf of Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Howard Posner

2734 Oakhurst Avenue

Los Angeles , CA 90034

(310) 497-0449

Jeffrey P. Cunningham

Schumann | Rosenberg

3100 Bristol Street, Suite 100

Costa Mesa, CA 92626

(714) 850-0210

Joshua C. McDaniel

Horvitz & Levy

3601 West Olive Avenue, 8th Floor

Burbank, CA 91505-4681

(818) 995-0800