Cross-Complainant’s Dilatory Conduct Justified The Sanctions Award.
Code of Civil Procedure section 2034.630 states that a trial court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to augment or amend expert witness information, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” This section was front and center in Black v. Fireman’s Fund Ins. Co., Case No. A155428 (1st Dist., Div. 1 Apr. 23, 2020) (unpublished).
In this case, a cross-complainant/insured brought an insurance bad faith suit against cross-defendant/insurer Fireman’s Fund. He designated two expert witnesses. Fireman’s Fund tried for over 1 ½ years to depose one of these experts, although the expert had informed cross-complainant that he would not provide expert testimony unless paid. A trial judge ordered the deposition of the expert under penalty of exclusion of his testimony at trial or otherwise. Cross-complainant did not produce the expert before the expert discovery cut-off and then brought a motion to augment the expert designation based on the claim that he needed time to find/designate a new expert. The trial judge denied the motion and imposed $7,862.50 in sanctions under section 2034.630.
Cross-complainants’ appeal of the sanctions order was unsuccessful. The record showed, quite clearly, that the initially designated expert was not going to provide testimony until he was paid, and cross-complainant showed no “substantial justification” for his delay in resolving the matter or designating a new expert for 1 ½ years. Beyond that, the appellate court found this event was part and parcel of dilatory conduct by cross-complainant, who had obtained 6 continuances of the trial date during the course of the litigation. Sanctions order affirmed.
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