West Hills Hospital v. Superior Court

California Court of Appeal Nov 13, 1979 No. Civ. 55993Published

Before: Hastings

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Holding. Under Code of Civil Procedure section 2037, only the party who makes a demand for expert witness lists and the party to whom the demand is addressed are required to comply with exchange requirements; service of an informational copy on other parties creates no such duty. Furthermore, only a party who has complied with the statute has standing to seek sanctions against another party for failure to exchange expert lists.

Issues

Whether a party served with an informational copy of an expert witness demand is required to respond to that demand.
Whether a party who has not complied with the expert witness exchange requirements has standing to seek sanctions against another party.
Whether the trial court abused its discretion by precluding a party from calling expert witnesses for failure to respond to a demand not addressed to them.

Disposition. reversed

Quotations verified verbatim against the opinion

“We conclude that only the party who makes the demand and the party on whom it is made are required to comply with section 2037.2 and not other parties on whom copies of the demand may be served.”

“Section 2037.5 requires first that the party seeking sanctions be in compliance with section 2037.2.”

Opinion

HASTINGS, J.

This is a proceeding in mandamus which involves interpretation of the statute governing discovery of expert witnesses. (Code Civ. Proc., § 2037 et seq.)

Petitioner is one of three codefendants in a medical malpractice action pending in respondent court. Real party in interest is the plaintiff in that action. Petitioner’s two codefendants, Drs. Davis and Brown, served a demand for list of expert witnesses (hereinafter Demand) pursuant to Code of Civil Procedure section 2037.

The Demand is addressed: “To Plaintiff, James Dunn, and to Robert H. Barnhill, His Attorney” but, in addition to serving real party, counsel for Brown and Davis also served a copy of the Demand on counsel for petitioner.

[658]

In response to the Demand, real party served a list of his expert witnesses on all of the defendants. Petitioner did not serve a list of its experts on any party. Real party filed a motion to preclude petitioner from calling any expert witnesses because of petitioner’s failure to serve such a list. Petitioner resisted the motion asserting that since the Demand was not addressed to it, it was not obliged to respond, even though the Demand was served upon it, and further asserting that real party lacked standing under the statute to raise the objection.

Respondent granted real party’s motion, ruling “that when anyone makes a demand and serves a copy of that on all other parties that the burden goes on all other parties to comply.” Petitioner thereupon filed the present petition for writ of mandate.

As respondent’s ruling presents a question of first impression of general importance to trial courts and to the legal profession, we issued an alternative writ of mandate for the purpose of setting forth guidelines for future cases.

(Oceanside Union School Dist.

Superior Court

(1962) 58 Cal.2d 180 [23 Cal.Rptr. 375, 373 P.2d 439].)

West Hills Hospital v. Superior Court

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HASTINGS, J.

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