Issue By: James F. Regan

Wilson Dante Perry v. Bakewell Hawthorne, LLC

Supreme Court of California 2 Cal. 5th 536 (February 23, 2017)

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.) Unreasonable failure to respond makes the noncomplying party’s expert opinion inadmissible, unless the court grants relief. (C.C.P. §§ 2034.300, 2034.620, 2034.720.)

The question in this case was whether this exclusionary rule applied at the summary judgment stage. C.C.P. § 437c, subdivision (d) requires that affidavits and declarations submitted in summary judgment proceedings “set forth admissible evidence.” The California Supreme Court held that when the trial court determines an expert opinion is inadmissible because disclosure requirements were not met, the expert opinion must be excluded from determining whether a motion for summary judgment should be granted if an objection is raised.

Plaintiff Wilson Dante Perry (“Perry”) sued Bakewell Hawthorne, LLC (“Bakewell”) and JP Morgan Chase Bank, NA (“Chase”), claiming he was injured in a fall on stairs 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 Bakewell’s motion for summary judgment, however, Perry submitted the declarations of two experts opining that the stairs where he fell 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 of Appeal affirmed the judgment in Bakewell’s favor, and an appeal to the California Supreme Court followed.

In affirming the judgment of the Court of Appeal, the Supreme Court took exception to two cases cited by Perry, overruling one, and disapproving another. Perry relied on Kennedy v. Modesto City Hospital (1990) 221 Cal.App.3d 575 (Kennedy). Kennedy emphasized the various references in the expert witness disclosure statutes related to admissions of expert opinions at trial. The Kennedy Court inferred that the Legislature had in mind the exclusion of expert testimony offered by noncomplying parties at trial, not at a pretrial proceeding. The Supreme Court disapproved of this case.

The Supreme Court also noted that this issue was briefly touched upon in Mann v. Cracchiolo (1985) 38 Cal.3d 18 (Mann). The Mann court noted that under the disclosure statutes, “the court upon such terms as may be just may permit a party to call an expert witness not included in the list of expert witnesses so long as the court finds that the party made a good faith attempt to list expert witnesses, that the party has given notice to the opposing party . . . ,and that as of the date of the exchange of lists the party would ‘not in the exercise of reasonable diligence have determined to call such witness.’ ” In overruling Mann, the Court stated that Mann did not mention the requirement that “[s]upporting and opposing affidavits or declarations” submitted with a summary judgment motion “shall set forth admissible evidence.”

The Supreme Court noted the results in Mann and Kennedy reflected a more restrictive approach to granting motions for summary judgment when the cases were decided, because these motions were previously disfavored. Nevertheless, it has always been “[t]he purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 at p. 843, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Section 437c has always required the evidence in a motion for summary judgment or its opposition to be admissible. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 528.) The Mann and Kennedy courts overlooked the significance of this requirement.

Even if all the references to “trial” in the expert witness disclosure statutes are read strictly, including the specification that the “trial court” must exclude the testimony of an undisclosed expert (§ 2034.300), the summary judgment statute still requires the evidence provided in declarations to be admissible at trial. (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761).


The Supreme Court took a practical approach to its holding: A party may not raise a triable issue of fact to defeat a motion for summary judgment by relying on evidence that will not be admissible at trial. If there was no expert disclosure for trial, the admissibility of an expert’s opinion must be determined before it can be used in support of or opposing a motion for summary judgment.

For a copy of the complete decision, see: Perry v. Bakewell Hawthorne, LLC

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