Filed 9/29/26 Martinez v. Parker CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
GEORGE MARTINEZ, B334995
Plaintiff and Appellant,
(Los Angeles County
Super. Ct. No. 18STCV06932)
v.
LYNDON PARKER,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Gregory Wilson Alarcon, Judge. Affirmed.
Hultin Law and Casey Hultin; Law Office of Mohammed Aly and
Mohammed Aly for Plaintiff and Appellant.
Freeman Mathis & Gary, Christian E. Foy Nagy, Christopher J.
Fleissner for Defendant and Respondent.
A trial court acts within its discretion in precluding a party’s
designated trial experts when the party unreasonably fails to make the
experts available for deposition. (See Code Civ. Proc., § 2034.300, subd. (d).)1
Plaintiff George Martinez failed to make his designated retained experts
available for deposition prior to (and after) the discovery cutoff date and then
belatedly attempted to add an additional expert. The trial court summarily
denied Martinez’s ex parte attempts to reopen discovery after the cutoff and
further continue the trial. The court later granted defendant Lyndon
Parker’s motions in limine to preclude Martinez’s experts from trial. On
appeal, Martinez challenges the trial court’s orders granting Parker’s motions
in limine. We find no abuse of discretion and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 14, 2018, Parker and his wife exited the subterranean
parking garage of their condominium building and struck Martinez’s vehicle
while exiting the driveway. At the time of the incident, Martinez was driving
on the street that ran perpendicular to the driveway.
On December 3, 2018, Martinez filed a complaint against Parker for
negligence arising from the motor vehicle collision. The trial was originally
set for July 27, 2022. However, after multiple continuances, trial ultimately
commenced on August 25, 2023.
I. Retained Expert Depositions
Martinez designated five retained experts, including Stepan Kasimian
M.D., along with multiple non-retained treating physicians, on three separate
occasions: June 7, 2022, September 7, 2022, and January 18, 2023.
On January 19, 2023, Parker noticed the depositions of four of
Martinez’s retained experts. Two were noticed for February 7, 2023, and the
other two were noticed for February 10, 2023. Parker made several attempts
to confirm the depositions and obtain the availability of Martinez’s retained
1 All further statutory references are to the Code of Civil Procedure.
2
experts. On January 31, 2023, Martinez’s counsel responded that “we are
checking on dates.” That same day, Parker noticed the deposition of the fifth
retained expert for February 15, 2023.
On February 1, 2023, Martinez served an objection on the grounds that
the dates were set “unilaterally and in violation of local rules.” While
Martinez stated that the experts and counsel were unavailable on those
dates, he did not provide alternative dates.
On February 2, 2023, Parker’s counsel requested coordination of the
experts’ depositions. Later that day, Parker’s counsel followed up requesting
expert availability and stated that she would have to take certificates of
nonappearance because Martinez had not provided any dates. Parker’s
counsel noted the looming expert discovery cutoff. The next day, Parker’s
counsel repeated that she would take certificates of nonappearance for the
depositions scheduled the following week. Martinez did not respond to that
email or provide expert availability.
On February 7, 2023, Parker’s counsel again requested availability for
Martinez’s experts and said that the “last day to notice expert depositions
[was today, February 7, 2023].” For the first time, Martinez’ s counsel
inquired about defense expert availability for deposition. Parker provided
deposition dates (albeit after the discovery cutoff). Martinez did not provide
any dates for his experts or follow up with the scheduling of the defense
expert depositions.
Parker’s counsel ultimately took nonappearances for the expert
depositions on February 7, 10, and 15, 2023.
3
II. Motion in Limine No. 102
The day expert discovery closed, Parker filed a motion in limine (No.
10) to preclude Martinez’s retained experts from testifying at trial on the
ground that he failed to produce the experts for deposition. (§ 2034.300.)
Martinez opposed the motion with a short paragraph stating,
“[Martinez] was unable to provide dates for retained expert deposition prior
to the close of expert discovery. [Martinez] is willing to produce retained
experts for deposition immediately. To the extent [Parker]’s motion seeks to
preclude [Martinez] from calling any non-retained experts at trial, [Martinez]
is under no obligation to arrange the depositions of non-retained experts,
including treating doctors.”
In reply, Parker noted that Martinez belatedly listed Kasimian as a
treating physician only, despite previously designating Kasimian as a
retained expert.3 Parker stated that he had refrained from deposing
Kasimian as a treating physician because he was later named as a retained
expert. Parker argued that “de-designating” Kasimian was gamesmanship.
III. Martinez’s First Ex Parte Application
Less than a week before the (then-scheduled) May 25, 2023 trial,
Martinez moved ex parte for a seven-month trial continuance to reopen
2 We note that D. Hess Panah was Martinez’s original counsel. On
March 6, 2023, Casey Hultin associated in as Martinez’s trial counsel. It
appears Hultin took over the motion practice with Panah remaining on the
caption as counsel of record. Then, on May 19, 2023, Diana S. Diskin was
associated in as counsel for Martinez. On August 25, 2023, Benjamin
Abraham Azizian was associated in as counsel for Martinez. During the jury
trial, Diskin was no longer on Martinez’s service list. However, there was no
withdrawal of counsel on the court’s docket or in the record on appeal.
3 Parker initially noticed Kasimian’s deposition as a treating physician.
Parker paid Kasimian’s deposition fee. Then, Parker received Martinez’s
expert designation on June 7, 2022, indicating that Kasimian was also
retained as an expert. Parker notified Martinez that the deposition would be
taken off calendar and conducted later based on Kasimian’s new designation.
4
expert discovery based on “the sheer volume of non-retained experts both
parties intend to call at trial.” Martinez explained that the parties could
“take the depositions of the non-retained treaters with the intent of playing
their deposition testimony at trial in lieu of live testimony, significantly
streamlining the trial and any scheduling issues.” Martinez did not mention
retained experts or provide an excuse for a delay in deposing the non-retained
treating physicians. In opposition, Parker argued Martinez failed to
demonstrate good cause to continue trial. Parker noted that the “case has
been pending [for] over four years, and [Martinez had] not made, nor could
[he] make, any showing as to why [he] is entitled [to] a new trial date to re-
open discovery.”
On May 22, 2023, the trial court denied the ex parte application,
finding Martinez did not “make an affirmative factual showing in a
declaration containing competent testimony based on personal knowledge of
irreparable harm, immediate danger, or any other statutory basis for
granting relief ex parte.” The court further found Martinez did not establish
good cause for the continuance and specifically, did not establish that he “is
without fault in creating the crisis that requires ex parte relief, or that the
crisis occurred as a result of excusable neglect.”
IV. Motion in Limine No. 11
On May 22, 2023, Parker filed a motion in limine (No. 11) to preclude
Kasimian from testifying at trial because he was not made available for
deposition before the close of discovery, and Parker would suffer prejudice if
Kasimian testified. (§ 2034.300; Evid. Code, § 352.) Parker noted that
Kasimian was originally identified as a treating physician, then designated
as a retained expert, then “de-designated” after discovery closed and
identified only as a treating physician again. Parker argued this was “a bait-
and-switch tactic.”
In opposition, Martinez asserted that Kasimian had been “designated
both as a retained and non-retained expert.” Therefore, after his “de-
designation,” he was still a non-retained expert, who could provide opinions
formed in the course and scope of his treatment at trial.
5
V. Martinez’s Second Ex Parte Application
On August 16, 2023, Martinez filed an ex parte application to continue
trial because he was scheduled for cervical fusion surgery on August 24,
2023, two days after the trial date. In addition, he sought to reopen discovery
to add his surgeon, Dr. Ali Najafi, as an expert witness. In opposition, Parker
argued Martinez was seeking this new medical treatment as a backdoor to
reopen discovery. Parker observed that in the almost five years of litigation,
Martinez had never sought treatment with Najafi and the scheduled surgery
was six months after discovery closed.
On August 17, 2023, the trial court granted the ex parte application in
part. The court found Martinez did not “make an affirmative factual showing
in a declaration containing competent testimony based on personal
knowledge of irreparable harm, immediate danger, or any other statutory
basis for granting relief ex parte.” The court further found Martinez did not
establish good cause for the continuance and specifically, did not establish
that he “is without fault in creating the crisis that requires ex parte relief, or
that the crisis occurred as a result of excusable neglect.” However,
considering Martinez’s representation that he would be in surgery on August
24, 2023, the court continued the trial three days, to August 25, 2023.
VI. Motion in Limine No. 12
On August 23, 2023, Najafi was added to the joint witness list and
referenced as Martinez’s treating physician. On August 24, 2023, Parker
filed a motion in limine (No. 12) to exclude reference to, evidence of, reports
and writings by, and testimony of Najafi at trial and to exclude Martinez’s
treatment. (§ 2023.030, subd. (c); Evid. Code, § 352.) Parker argued Najafi
was not disclosed before the discovery cutoff, nor was he identified as a
treating physician in compliance with section 2034.210. In opposition,
Martinez conceded that he was not treated by Najafi prior to the discovery
cut off, however, he said he could not be expected to disclose a treating doctor
who did not exist at the time of designation. He noted that another physician
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(Dr. Kamran Parsa) recommended the same cervical fusion surgery as early
as 2019.
VII. Rulings on Motions in Limone
On August 31, 2023, the trial court held a hearing on the motions in
limine. At the outset, the court noted that the “trial has to go, with lawyers
that are ready to go or deemed ready to go, with no continuance and no
reopening discovery. And . . . it looks like . . . there’s a lot of witnesses that
the defense was never able to depose.” After argument, the court granted the
motions, stating that “the previous [judicial officer presiding over the case
had] already read, considered, and denied the [ex parte] motion to reopen
discovery. Considering this decision, the fact this case ha[d] been deemed
ready for trial, the Court will proceed on the witnesses who have been made
available to both sides and exclude the witnesses that have not been made
available to opposing counsel.”
VIII. Trial
On September 27, 2023, the jury reached its verdict, finding Parker
was negligent and was a substantial factor in causing harm to Martinez. The
jury awarded Martinez $70,059 for his past medical expenses. The jury
awarded no future medical expenses. The jury also awarded nothing for past
or future noneconomic damages. However, the jury determined that
Martinez was 90 percent responsible for his harm and Parker was 10 percent
responsible. On October 30, 2023, judgment was entered in favor of Martinez
in the amount of $7,005.90.
Martinez timely appealed.
7
DISCUSSION4
Martinez asserts the trial court erred in excluding the testimony of his
expert witnesses as a remedy for his failure to comply with the expert
witness exchange requirements. We disagree.
I. Governing Law
“The statutes governing expert witness discovery are part of the Civil
Discovery Act. (§ 2016.010 et seq.) The purposes of the discovery statutes
are ‘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.’ [Citation.]” (Boston v.
Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950 (Boston);
see Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 416 [“The
purpose of the expert witness discovery statutes is ‘to give fair notice of what
an expert will say at trial.’ ”].) Our Supreme Court has emphasized “that the
need for pretrial discovery is greater with respect to expert witnesses than
ordinary fact witnesses because the opponent must prepare to cope with the
expert’s specialized knowledge.” (Boston, supra, 170 Cal.App.4th at p. 950.)
“The trial court is empowered to exercise superintendency over
discovery. (See People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980,
991 [‘Recognizing that discovery procedures are subject to misuse, the Civil
Discovery Act authorizes the trial court to limit discovery where
appropriate.’].)” (Boston, supra, 170 Cal.App.4th at p. 952.) As relevant here,
section 2034.300 empowers the court to exclude the expert opinion of any
witness offered by a party who has unreasonably failed to make that expert
available for deposition. (§ 2034.300, subd. (d).) Whether a party has
unreasonably failed to make its experts available for deposition depends on
the conduct of both parties, including any appearance of gamesmanship of
4 The court has read and considered Parker’s motion to dismiss this
appeal, Martinez’s opposition, and Parker’s reply. The motion is denied.
8
the party delaying or preventing the deposition, and any exacerbating
behavior of the objecting party. (See Staub v. Kiley (2014) 226 Cal.App.4th
1437, 1447 (Staub) [“[f]ailure to comply with [expert witness rules] may be
found to be ‘unreasonable’ when a party’s conduct gives the appearance of
gamesmanship, such as undue rigidity in responding to expert scheduling
issues”]; see Boston, supra, 170 Cal.App.4th at p. 954 [the opportunity for
meaningful deposition is one of the circumstances the trial court should
consider when making the reasonableness determination].)
“ ‘[T]he purpose of discovery sanctions “is not ‘to provide a weapon for
punishment, forfeiture and the avoidance of a trial on the merits,’ ” . . . but to
prevent abuse of the discovery process and correct the problem presented . . .
.’” (Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285,
300.)
II. Standard of Review
We review the trial court’s ruling on a motion to exclude an expert for
abuse of discretion. (Staub, supra, 226 Cal.App.4th at p. 1445; Boston, supra,
170 Cal.App.4th at p. 950.) The trial court has broad discretion in admitting
or rejecting proffered evidence and its decision will not be reversed on appeal
unless there is a manifest abuse of that discretion resulting in a miscarriage
of justice. (See Cal. Const., art. VI, § 13; People v. Hall (1980) 112 Cal.App.3d
123, 127; People v. Wein (1977) 69 Cal.App.3d 79, 90.) Whenever the trial
court has discretionary power to decide an issue, its decision will not be set
aside “as long as there exists ‘a reasonable or even fairly debatable
justification, under the law, for the action taken,’ ” even if the appellate court
“ ‘might feel inclined to take a different view from that of the court below as
to the propriety of its action.’ ” (Gonzales v. Nork (1978) 20 Cal.3d 500, 507,
quoting Harrison v. Sutter St. Ry. Co. (1897) 116 Cal. 156, 161.) In other
words, an appellate court will interfere with the trial court’s exercise of
discretion only when it concludes that under all the evidence, viewed most
favorably in support of the decision, “no judge could reasonably have made
[the challenged decision].” (Newbauer v. Newbauer (1949) 95 Cal.App.2d 36,
40.)
9
Martinez advocates for an independent review, citing Dillingham-Ray
Wilson v. City of Los Angeles (2010) 182 Cal.App.4th 1396, 1402 (Dillingham)
and Kelly v. New West Federal Savings (1996) 49 Cal.App.4th 659 (Kelly).
The court in Dillingham stated that “[w]hen all evidence on a particular
claim is excluded based on a motion in limine, the ruling is subject to
independent review as though the trial court had granted a motion for
judgment on the pleadings or, if the evidence was offered, a motion for
nonsuit.” (Ibid.) That is not the case here. Martinez was not prevented from
putting forth “all evidence” on his negligence claim because of the trial court’s
in limine rulings. Rather, the court simply limited the evidence to be offered
to prove his claim. Admittedly, Martinez asserts that the rulings eliminated
a “category of damages” but does not argue the rulings precluded the entire
claim. At trial, Martinez testified to his injuries and his treating physicians
testified about past and future care. “In instances in which an in limine
ruling does not preclude an entire claim but instead limits the evidence that
will be offered to prove a claim, we review the ruling for an abuse of
discretion. [Citation.]” (Dillingham, supra, at p. 1403.)
Relying on Kelly, Martinez argues he suffered a miscarriage of justice
and this is reversible per se. Martinez’s reliance on Kelly is misplaced. In
Kelly, the appellate court first considered whether the trial court’s
evidentiary rulings constituted an abuse of discretion and then, only after
concluding that they did, considered whether the error required reversal.
(Kelly, supra, 49 Cal.App.4th at p. 677.) Because the court in Kelly found
that the trial court “had effectively excluded any presentation of evidence on
liability,” it then determined the error resulted in a miscarriage of justice and
required reversal per se. (Id. at pp. 668, 677, italics added.) Here, we must
first consider whether the trial court abused its discretion by granting the
motions in limine before considering whether reversal is required as a result
of any associated error.
III. Analysis
We find no abuse of discretion here. Martinez unreasonably failed to
make his experts available for deposition. When Parker served the
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deposition notices and made attempts to coordinate expert depositions,
Martinez was nonresponsive. While Martinez communicated he was
“checking on dates,” no additional dates were provided. Martinez then filed a
blanket objection to the deposition notices without providing any alternative
dates. Parker’s diligent efforts to reschedule and coordinate the retained
expert depositions proved fruitless.
Martinez’s attempt to distance himself on appeal from the inaction of
his “prior counsel” is unavailing. Martinez does not directly indicate his
“prior counsel” by name, but it appears he is referring to Panah, who
remained listed as counsel of record throughout the proceedings despite
Hultin associating in as trial counsel approximately a month after the
discovery cutoff. Martinez fails to explain or excuse Panah’s lack of
engagement with defense counsel regarding expert availability.
Martinez presents no justification for his inaction in facilitating
depositions of his experts. In the trial court, Martinez simply stated that he
“was unable to provide dates for retained expert deposition prior to the close
of expert discovery.” On appeal, he now places blame on Parker’s “rigorous
opposition to [his] curative efforts” to continue trial and reopen discovery.
However, we do not fault Parker for failing to make curative efforts in a
situation created by Martinez, in the absence of any showing entitling
Martinez to relief, and where nothing in the record suggests Parker
contributed to Martinez’s discovery failures.5
Martinez further argues the trial court erred in excluding his experts
because Parker should have been required to file a motion to compel before
moving to exclude his experts. Nothing in the text of section 2034.300
requires a party to file a motion to compel, obtain an order compelling the
expert to be produced for deposition, and then wait for the order to be
violated before a motion to exclude the expert’s testimony may be brought.
5 Martinez’s assertion that Parker is also at “fault for the failure to
timely complete discovery” is not relevant to the issues presented. Martinez
did not file a motion in limine to exclude any expert witness or seek other
relief before the trial court based on alleged discovery abuse. In addition,
Martinez failed to make this argument in opposing Parker’s motions in
limine.
11
(See, e.g., Muller v. Fresno Community Hospital & Medical Center (2009) 172
Cal.App.4th 887, 906 [specific provisions of section 2034.300 rather than
general discovery misuse provisions are to be applied in context of expert
witness testimony exclusion]; see also Ajaxo v. E*Trade Financial Corp.
(2020) 48 Cal.App.5th 129, 181 [liberal policies of the discovery statutes
“carr[y] less force when the decision under review is the denial of expert
testimony for noncompliance with expert witness disclosure requirements.
The expert witness disclosure requirements are intentionally rigorous.”].)
Next, Martinez contends that “de-designating” Kasimian as a non-
retained expert permitted him to testify as a treating physician regarding his
personal observations and treatment of Martinez. We agree with Martinez
that he was not required to produce a non-retained expert for deposition.
(Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35.) However, as aptly put
by Parker, Kasimian initially “wore both hats;” he was designated as a
retained expert and as a treating physician. Martinez then pulled his
retained expert designation after discovery had closed as an apparent
workaround to Kasimian’s preclusion at trial. It was only after Parker
sought to exclude Martinez’s retained experts that Martinez “de-designated”
Kasimian as an expert witness. When Kasimian was originally designed as a
retained expert, Parker had explicitly communicated that he would wait to
depose Kasimian with the other experts. Parker’s efforts to depose Kasimian
and the other experts were then ignored by Martinez without explanation.
While “a party may, for tactical reasons, withdraw a previously designated
expert witness,” such a witness is thereafter excluded from participating in
the trial. (County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d
647, 657.) To hold otherwise would frustrate the goals of the expert discovery
statutes, which include expediting and facilitating preparation for trial.
Lastly, Martinez challenges the exclusion of Najafi along with related
testimony pertaining to his cervical fusion surgery by again placing the
blame on Parker. Martinez asserts that Parker had the opportunity to
perform an independent medical exam and take Martinez’s and Kasimian’s
depositions. It is unclear how this is relevant to Martinez’s belated effort to
include Najari as an expert. Martinez fails to explain the connection on
appeal. Martinez attempted to introduce Najafi six months after the
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discovery cutoff and less than a week from trial. Multiple trial continuances
had already been granted over three years of litigation. Martinez argues that
the tardy disclosure should be excused because the surgery occurred after the
discovery cutoff. However, he fails to demonstrate due diligence in seeking
medical treatment with Najafi despite his claim that this procedure was
recommended well before the discovery deadline in 2019. As noted, the trial
court denied Martinez’s ex parte application to continue the trial and reopen
discovery to add Najafi as an expert witness. The court found, and we agree,
that Martinez was “at fault in creating the crisis.”
The record supports the trial court’s implicit conclusion that Martinez
behaved so unreasonably as to warrant exclusion of his experts’ opinion
testimony. Martinez engaged in actions that can be characterized as
gamesmanship, justifying exclusion. (Zellerino v. Brown (1991) 235
Cal.App.3d 1097, 1117.)6 We therefore conclude the trial court did not abuse
its discretion in its evidentiary rulings.
DISPOSITION
The judgment is affirmed. Parker is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ZUKIN, P. J.
We concur:
MORI, J.
TAMZARIAN, J.
6 We also conclude there was no abuse of discretion in excluding
Martinez’s testimony about his surgical fusion surgery. We note that the
trial court permitted one of Martinez’s physicians (Parsa) to testify that he
recommended Martinez for cervical fusion surgery based on his 2019
examination.
13