Frank Phillips vs. Republic Electric West, Inc

34-2023-00336281-CU-WT-GDS: Frank Phillips vs. Republic Electric West, Inc 12/15/2025 Hearing on Motion - Other to Amend or Augment Expert Witness Designation in Department 25

Tentative Ruling

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34-2023-00336281-CU-WT-GDS: Frank Phillips vs. Republic Electric West, Inc 12/15/2025 Hearing on Motion - Other to Amend or Augment Expert Witness Designation in Department 25

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TENTATIVE RULING:

The motion of Plaintiff Frank Phillips (“Plaintiff “) to amend or augment expert witness designation and for an order “re-designating his expert witness” is ruled upon as follows.

Background

Plaintiff filed his complaint on March 15, 2023. This is a wrongful termination action pertaining to the employment of Plaintiff by Defendant. Plaintiff’s complaint alleges that Defendant Republic Electric West, Inc. (“Defendant” or “REW”) failed to pay him his lawful wages and subsequently terminated his employment following Plaintiff raising the issue with human resources. The complaint alleges causes of action for wrongful termination and retaliation.

On August 11, 2025, Plaintiff filed an ex parte application to continue the initial trial date (set for August 26, 2025). In ruling on the application, the Court set the matter for a hearing on August 22, 2025, on shortened time. (8/13/25 Order.) On August 22, 2025, after hearing oral argument, the Court vacated its tentative ruling (initially denying Plaintiff’s motion to continue trial), and granted Plaintiff’s motion to continue the trial date. (8/22/25 Order.) In granting the motion, the Court continued the initial trial date from August 26, 2025, to February 3, 2026. (Ibid.)

Legal Standard

Code of Civil Procedure section 2034.230 provides that the date of the exchange of expert witness information “shall be 50 days before the initial trial date, or 20 days after service of the demand, whichever is closer to the trial date, unless the court, on motion and a showing of good cause, orders an earlier or later date of exchange.” (Code Civ. Proc. § 2034.230(b).) Code of Civil Procedure section 2034.230(b)’s reference to “initial trial date” means the original trial date, not a continued or rescheduled trial date. (Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1292-1293.)

A party that has failed to list an expert or fails to submit a declaration for an expert in connection with an exchange of expert witness information, the judge must exclude the expert’s testimony at trial. (Code Civ. Proc., § 2034.300.) To amend or “augment” this list, the party must first obtain a court order based upon a motion made pursuant to Code of Civil Procedure section 2034.610. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 541.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336281-CU-WT-GDS: Frank Phillips vs. Republic Electric West, Inc 12/15/2025 Hearing on Motion - Other to Amend or Augment Expert Witness Designation in Department 25

“On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following: (1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained. (2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.” (Code Civ. Proc., § 2034.610(a)(1)-(2).)

Code of Civil Procedure section 2034.610(b) provides that any such motion (pursuant to subdivision (a)),“shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.” (Code Civ. Proc., § 2034.610(b).)

Code of Civil Procedure section 2034.620 provides:

The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined either of the following:

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336281-CU-WT-GDS: Frank Phillips vs. Republic Electric West, Inc 12/15/2025 Hearing on Motion - Other to Amend or Augment Expert Witness Designation in Department 25

described in Section 2034.260 on all other parties who have appeared in the action.

(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

(Code Civ. Proc., §2034.620.)

“On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.” (Code Civ. Proc., § 2034.710(a).) A motion under subdivision (a) shall be made, a “sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.” (Code Civ. Proc., § 2034.710(b).)[1]

Discussion

Through this motion Plaintiff moves for this Court to allow him to “re-designate Dr. Rowe, the same retained mental-health expert who was timely disclosed on July 7; whom Defendant noticed for deposition; and whose anticipated opinions regarding Plaintiff’s emotional harm from the alleged wrongful termination and retaliation REW has known about for months.” (Mov. MPA, p. 3:3-7.) In support of the requested relief, Plaintiff states the following:

5. On July 7, 2025, the Parties mutually disclosed their expert witnesses. Plaintiff timely designated Dr. Rowe as a retained expert, and REW received that designation on July 7. From that date forward, REW knew Dr. Rowe was a potential expert witness for Plaintiff and the general substance of her expected opinions.

6. On August 4, 2025, REW served notices of depositions for Plaintiff’s experts, including Dr. Rowe, setting their depositions for August 15, 2025.

7. On August 6, 2025, Plaintiff served written objections, explaining that counsel was unavailable on August 15 but remained willing to produce Plaintiff’s experts and proposed August 21 or 22, 2025 as alternative dates, which were within days of the then- scheduled trial date.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336281-CU-WT-GDS: Frank Phillips vs. Republic Electric West, Inc 12/15/2025 Hearing on Motion - Other to Amend or Augment Expert Witness Designation in Department 25

8. On August 8, 2025, REW served amended notices resetting those depositions, including Dr. Rowe’s, for August 22, 2025—after the August 15 expert discovery cut off and in the week immediately preceding the August 26 trial date.

9. Thereafter, Plaintiff withdrew Dr. Rowe as an expert on August 14, 2025, due to an internal misunderstanding between counsel. At that time, expert discovery was set to close on August 15, 2025, and trial was set for August 26, 2025. Against this compressed backdrop, and in the context of an internal misunderstanding between counsel, Plaintiff made a judgment call to withdraw Dr. Rowe as an expert.

...

11. On September 19, 2025, Plaintiff’s co-counsel withdrew for reasons unrelated to the merits of Plaintiff’s claims. This further altered the posture of the case and required remaining counsel to re-evaluate trial preparation, including the benefit of expert testimony in light of the continued trial date and outstanding discovery issues. Having reassessed the needs of the case, and with the continued trial date several months away, Plaintiff served an Amended Expert Designation on October 27, 2025, which re- designated Dr.

Rowe as his retained expert and provided dates for her deposition. REW responded that it would not treat Dr. Rowe as a properly designated expert absent a court order. A true and correct copy of this email exchange is attached hereto as Exhibit 1. Therefore, Plaintiff now brings this Motion to obtain that order and to allow expert discovery to proceed in a manner consistent with the Court’s prior continuance and with the purposes of the expert disclosure statutes.

(Koleson Decl., ¶¶ 5-9, 11, Exh. 1.)

With this, Plaintiff argues that any misstep in withdrawing Dr. Rowe was a product of mistake and excusable neglect in a compressed and shifting procedural environment, not gamesmanship. Further, Plaintiff contends that he acted promptly once circumstances changed and has complied with the statutory requirement to seek relief by motion and to serve the proposed expert information. Based upon the foregoing, Plaintiff maintains that he has satisfied all necessary elements to warrant mandatory amendment of his expert designation pursuant to section 2034.620.

In opposition, Defendant does not appear to otherwise dispute Plaintiff’s position. Defendant argues that Plaintiff is not “augmenting” or “amending” his expert designation, rather, Plaintiff “merely wants to revive his July 7 disclosure as it existed then, merely because his counsel team has resolved their internal dissension and original counsel believes the trial continuance grants him a reprieve.” (Opp’n, p. 3: 17-20.) However, Defendant omits any argument as to why this

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2023-00336281-CU-WT-GDS: Frank Phillips vs. Republic Electric West, Inc 12/15/2025 Hearing on Motion - Other to Amend or Augment Expert Witness Designation in Department 25

would be prejudicial. While Defendant does state that it has “relied on the withdrawal of Dr. Rowe,” importantly, Defendant does not otherwise contend that it will suffer any prejudice or articulate what that prejudice would be. Nor does Defendant identify any conditions it would seek to minimize any such purported prejudice.

Having considered the arguments raised and evidence presented by the parties, and the record before the Court, the Court concludes that Plaintiff’s withdrawal of/failure to designate the expert (Dr. Rowe) was the result of mistake, inadvertence, surprise, or excusable neglect. In addition, Plaintiff promptly sought leave to augment its expert list after deciding to call the expert and provided Defendant with the proposed expert witness information. The Court further finds that Defendant has not shown any prejudice, and the Court does not find any based on the record before it.

Therefore, the motion is granted and Plaintiff shall be permitted to augment their expert witness list to include Dr. Jessica Rowe. Leave to augment is conditioned on Plaintiff making Dr. Rowe immediately available for deposition. (Code Civ. Proc., § 2034.620(d).)

Disposition

Plaintiff’s motion is GRANTED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc., § 1019.5; Cal. Rules Court, rule 3.1312.)

[1] The Court notes, in light of its ruling on Plaintiff’s motion to reopen discovery, the Court need

not find “exceptional circumstances” to grant the motion, as would have been required if discovery remained closed. The statute allows a motion to augment or amend an expert witness designation be granted later, even during trial, on a showing of “exceptional circumstances” and on such “terms as may be just.” (See Plunkett v. Spaulding (1997) 52 Cal.App.4th 114, 137.)