ARMANDO CAMACHO v. ROBERTSON’S READY MIX, et al.

V. APPLICABLE LAW On objection of any party who has made a complete and timely compliance with Section

2034.260, the trial court shall exclude from evidence the expert opinion of any witness offered

by any party who has unreasonably failed to (a) list that witness as an expert under Section

2034.260; (b) submit an expert witness declaration; (c) produce reports and writings of expert

witnesses under Section 2034.270; or (d) make that expert available for a deposition under

Section 2034.410. (Code Civ. Proc., § 2034.300.)

Code of Civil Procedure section 2034.300 references the following exceptions to such

exclusion: (i) the expert was designated by another party and was deposed [Code Civ. Proc.,

§2034.310, subd. (a)], (ii) the expert is a proposed rebuttal witness [Code Civ. Proc., §2034.310,

subd. (b)], (iii) the expert was subsequently added after a party obtained a court order to augment

2 The Court finds that the moving party has complied with its meet-and-confer obligation.

his expert witness list [Code Civ. Proc., §2034.610, et. seq.], and (iv) the expert was submitted in

a tardy expert witness designation allowed by court order [Code Civ. Proc., §2034.710, et. seq.].

After a demand for expert witness lists, the parties shall simultaneously exchange their

lists. (Code Civ. Proc., §2034.230, subd. (b).) After an exchange has occurred, a party has two

avenues to add experts: (1) within 20 days after the exchange, a party may supplement their list

with an expert who will express opinions on a subject to be covered by an expert designated by

an adverse party unless they have already retained an expert to testify on that subject [Code Civ.

Proc., §2034.280, subd. (a)] or (2) bring a motion to augment his expert witness list to add the

name and address of the expert witness subsequently retained, or to amend the expert witness

declaration on the general substance of the testimony the expert previously designated is

expected to give [Code Civ. Proc., §2034.610, subd. (a)].

A party may not unreasonably fail to timely disclose its expert witnesses. (Du-All Safety,

LLC v. Superior Court (Krein) (2019) 34 Cal.App.5th 485, 498-99.) The inquiry for

unreasonableness is “whether the conduct being evaluated will compromise these evident

purposes of the discovery statutes: ‘to assist the parties and the trier of fact in ascertaining the

truth; to encourage settlement by educating the parties as to the strengths of their claims and

defenses; to expedite and facilitate preparation and trial; to prevent delay; and to safeguard

against surprise.’” (Id. at p. 499.) A party’s conduct appearing to be one of gamesmanship will

support unreasonableness. (Ibid.)

VI. WHY THE COURT IS DENYING THE MOTION Camacho motions under Code of Civil Procedure section 2034.300 for the court to

exclude Mary Jesko, MS, Ph.D. (Dr. Jesko) as an expert as Defendants failed to comply with

Code of Civil Procedure section 2034.280. Specifically, Camacho argues that because

Defendants had already designated Ronald S. Kvitne, M.D. (Dr. Kvitne) to testify regarding

Plaintiff’s future care needs, care costs, and injury causation, they cannot now claim Dr. Jesko

covers a new subject area. As such, Defendants cannot contend that Dr. Jesko addresses a wholly

new subject area and Code of Civil Procedure section 2034.280 does not provide a mechanism

for a party to refine its expert strategy after learning the identity and anticipated testimony of the

opposing party’s experts.

Camacho argues the facts here are comparable to Fairfax v. Lords (2006) 138

Cal.App.4th 1019 (Fairfax) where the court found an impermissible “wait-and-see” tactic was

used. Here, Defendants designated a life care planner, Dr. Jesko, after learning that Plaintiff

designated a life care planner, Dr. Contreras. Camacho further argues the facts here are

distinguishable from those in Krein, supra, as Defendants are not responding to a wholly new

subject area introduced for the first time by Plaintiff, but attempting to provide additional expert

testimony on subjects already covered by Dr. Kvitne. Finally, Camacho argues if the designation

of an additional expert was necessary, the proper procedure would be to seek leave to augment

its expert witness list under section 2034.610, which was not done here.

In their Opposition, Defendants argue they timely and simultaneously designated their

initial experts pursuant to Code of Civil Procedure section 2034.260 and timely supplementally

designated their own life care planner, Dr. Jesko, after receiving Plaintiff’s expert designation of

a life care planner. Defendants argue the facts here are easily distinguishable from Fairfax as in

Fairfax, the defendant failed to engage in the simultaneous exchange of expert information

pursuant to Code of Civil Procedure section 2034.260. Defendants further contend there is no

evidence of intentional delay, as they timely exchanged their initial list of trial witnesses and

were therefore entitled to supplement that list under Section 2034.280. Defendants further argue

the instant Motion is moot as the court’s June 15, 2026 order continuing trial ordered all trial

related dates to follow the continued trial date. Pursuant to the new trial date, Defendants have

until July 20, 2026 to serve their demand for simultaneous exchange of expert information.

Camacho replies, renewing his argument that Defendants’ supplemental designation of

Dr. Jesko fails to satisfy the requirements under section 2034.280. Defendants argue as Dr. Jesko

was not designated to address a previously undesignated subject, exclusion of Dr. Jesko’s

testimony is mandatory pursuant to section 2034.300. As to Defendants’ argument that the

continuance of the trial moots the instant Motion, Camacho argues the issue remains whether

Defendants properly invoked section 2034.280 when they designated Dr. Jesko after previously

retaining Dr. Kvitne to testify regarding substantially the same subjects.

The Court DENIES Camacho’s Motion in its entirety. Both Camacho and Defendants

cite Fairfax and Krein as the applicable authorities on this legal matter. The Court agrees with

Defendants that the facts here are comparable to Krein and distinguishable from Fairfax. Here,

unlike Fairfax, Defendants simultaneously designated their initial experts pursuant to Code of

Civil Procedure section 2034.260 and there is no evidence that Defendants intended to play a

“wait-and-see game.”

Camacho argues that Defendants’ supplemental designation of Dr. Jesko fails to satisfy

the requirements under section 2034.280 and Krein as the designation of Dr. Jesko is not

responding to a new subject area introduced for the first time by Plaintiff, but attempting to

provide additional expert testimony on subjects already covered by Dr. Kvitne. The Court is not

persuaded. The opposing party has the right to supplement its expert witness list to identify an

expert to cover the subjects the other party plans to offer expert testimony. (Krein, supra, 34

Cal.App.5th at p. 498). Here, Dr. Jesko is clearly indicated to be, among other things, a

“Certified Life Care Planner.” The supplemental designation indicates, “Dr. Jesko is expected to

testify concerning Plaintiff’s future medical treatment and the reasonable medical costs

associated with such treatment, life care plan, and the nature, extent and causation of Plaintiff’s

injuries and damages, and other related topics within this area of expertise.” While Dr. Kvitne

was also indicated to testify as to, “Plaintiff’s current condition, to include, if any, the need for

further treatment and costs therefor,” Dr. Jesko’s range of testimony is distinct from

Dr. Kvitne’s.

As in Krein, the Court finds the facts here are distinguishable from Fairfax as Defendants

here did make an initial designation, no prejudice exists, and there is no indication of the

Defendants engaging in gamesmanship. (Id. at pp. 500-01.) Indeed, speaking on the issue of

prejudice specifically, there is clearly no prejudice given the court’s continuance of the trial in

this case.

VII. CONCLUSION

Plaintiff Armando Camacho’s Motion to Strike Defendants’ Supplementally Designated

Expert is respectfully DENIED.

IT IS SO ORDERED.

Dated: [TENTATIVE – NOT FINAL] Hon. Joseph B. Widman Judge of the Superior Court