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Perry v. Bakewell Hawthorne, LLC

Supreme Court of California

February 23, 2017, Filed



 [**1]  [***764]   CORRIGAN, J.] After a trial date is set, a party may demand a simultaneous exchange of expert witness information by all parties. (Code Civ. Proc., § 2034.210.) [***765]  1 Unreasonable failure to respond makes the noncomplying party's expert opinion inadmissible, unless the court grants relief. (§§ 2034.300, 2034.620, 2034.720.) The question here is whether this exclusionary rule applies at the summary judgment stage. The expert witness disclosure statutes provide no answer. However, section 437c, subdivision (d) requires that affidavits and declarations submitted in summary  [**2]  judgment proceedings [****2]  “set forth admissible evidence.” Therefore, we hold that when the court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised.

Plaintiff Wilson Dante Perry sued Bakewell Hawthorne, LLC, and JP Morgan Chase Bank, NA, claiming he was injured in a fall on property owned by Bakewell and leased by Chase. Chase demanded an exchange of expert witness information, but Perry made no disclosure. In response to [*539]  Bakewell's motion for summary judgment, however, he submitted the declarations of two experts opining that the stairs he fell on were in disrepair and did not comply with building code and industry standards. The trial court sustained Bakewell's objection to the introduction of these declarations because Perry had failed to disclose the experts. Summary judgment was granted. Perry moved for reconsideration, but the motion was never heard because it was discovered that the law license of Perry's counsel had been suspended. After judgment was entered for Bakewell, Perry substituted counsel and unsuccessfully moved for permission to designate his experts.

The Court [****3]  of Appeal affirmed the judgment in Bakewell's favor.

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2 Cal. 5th 536 *; 389 P.3d 1 **; 213 Cal. Rptr. 3d 764 ***; 2017 Cal. LEXIS 1351 ****; 2017 WL 712748

WILSON DANTE PERRY, Plaintiff and Appellant, v. BAKEWELL HAWTHORNE, LLC, Defendant and Respondent.

Subsequent History: Reported at 2017 Cal. LEXIS 1543

Prior History:  [****1] Superior Court of Los Angeles County, No. BC500198, Gregory Keosian, Judge. Court of Appeal, Second Appellate District, Division Two, No. B264027.

Perry v. Bakewell Hawthorne, LLC, 244 Cal. App. 4th 712, 198 Cal. Rptr. 3d 669, 2016 Cal. App. LEXIS 77 (Cal. App. 6th Dist., 2016)


disclosure, inadmissible

Civil Procedure, Judgments, Summary Judgment, Evidentiary Considerations, Discovery, Methods of Discovery, Expert Witness Discovery, Opposing Materials, Accompanying Documentation, Supporting Materials, Affidavits