MEGAN MCGOURTY vs CY KELLAR

2024CUPA026646: MEGAN MCGOURTY vs CY KELLAR 05/20/2026 in Department 20 Defendant’s Motion for an Order Continuing Trial and Expert Witness Related Dates

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Motion: Defendant Cy Kellar’s (“Defendant”) Motion for an Order Continuing Trial and Expert Witness Related Dates

Tentative: Defendant’s Motion for an Order Continuing Trial and Expert Witness Related Dates GRANTED as set forth below.

Code of Civil Procedure section 473 provides that a court “may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or

2024CUPA026646: MEGAN MCGOURTY vs CY KELLAR

excusable neglect.” A discovery demand pursuant to Code of Civil Procedure section 2034 is a “proceeding” within the meaning of Section 473. (Zellerino v. Brown, (1991) 235 Cal. App. 3d 1097, 1105.)

Due to defense counsel’s miscommunication with her staff, she failed to oversee that defendant’s demand for exchange of expert witness information was appropriately served on Plaintiff’s counsel. (Smith Decl. ¶¶ 7-8.) Defense counsel thought the demand had been timely served, which is evidenced by the fact that on April 10, 2026, defendant served his designation of experts. (Smith Decl. ¶ 9.) Upon learning from Plaintiff’s counsel that no demand had been served, defense counsel sought relief through an ex parte application for an order shortening time to have the within motion heard wherein she explained that during the week of the service of the demand, her office experienced a turnover in support staff who assisted counsel in filing documents with the court.

Defense counsel takes responsibility for the failure to serve the demand and promptly took steps to correct the error. The Court finds defense counsel has shown mistake and inadvertence sufficient to grant relief and that good cause exists to grant the motion pursuant to Code of Civil Procedure section 473. The court does not find prejudice to plaintiff and instead finds that plaintiff is currently advantaged by knowing the identities of defendant’s experts. There is the potential for unfair surprise to defendant in proceeding without relief considering the importance of discovery of experts in a lawsuit where plaintiff was injured to the point of needing surgery.

The Court is mindful of the purposes of the discovery act, several of which are to educate the parties in advance of trial as to the real value of their claims and defenses; to narrow issues; and to safeguard against surprise.

Plaintiff’s request for monetary sanctions is denied for lack of evidentiary support as to the basis for the request for sanctions as well as for the basis of the amount of sanctions requested.

Based on the foregoing, the motion is GRANTED as follows:

Trial is continued to August 3, 2026, at 1:30 p.m. Counsel may appear via ZOOM on that date, only. If the Court is not engaged and no other matters have priority, trial will commence at 10:00 a.m. on August 4, 2026. Parties are ordered to comply with Courtroom 20 rules and procedures with respect to their pre-trial and trial documents. Counsel are advised that the clerk’s office does not accept pre-trial documents for filing. All documents which are sought to be filed shall be brought by the parties in hard copy and will be filed in Courtroom 20 on the day trial commences.

Defendant is granted leave to serve his demand for exchange of expert witness information upon Plaintiff’s counsel on or before May 22, 2026. The exchange of expert witness information shall thereafter proceed pursuant to code in relation to the continued trial date. Expert discovery and motion cut-off dates with respect to expert discovery, only, will run with the continued trial date.

Defendant shall provide notice.

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