SAN FRANCISCO (Legal Newsline) – On Feb. 23 the Supreme Court of California issued an opinion in the case of Wilson Dante Perry v. Bakewell Hawthorne LLC. The conclusions reached specify what information may be used when one side is asking for the court for summary judgment.

In affirming the court of appeals' decision, the Supreme Court opinion concluded that “a party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.”

It also concluded “When the time for exchanging expert witness information has expired before a summary judgment motion is made, and a party objects to a declaration from an undisclosed expert, the admissibility of the expert’s opinion can and must be determined before the summary judgment motion is resolved.”

Perry v. Bakewell, a personal injury case based on premises liability, was filed in January 2013. The plaintiff, Wilson Dante Perry, claimed that he fell on an exterior stairway and was injured while on property owned by Bakewell Hawthorne LLC, and leased by JP Morgan Chase Bank.

In his first amended complaint, the plaintiff alleged that Chase and Bakewell were both negligent in designing, developing, operating and maintaining the stairway, and that their negligence caused plaintiff to fall and sustain injuries. Trial was initially set for July 14, 2014.

Bakewell filed for summary judgment and argued that it had not breached a duty of care and had no actual or constructive notice of a dangerous condition. Summary judgment was granted, with the court saying that no admissible evidence had been offered to prove the defendants had breached a duty of care and had notice of a dangerous condition. The plaintiff appealed the ruling.

The plaintiff submitted a memorandum of points and authorities in which he argued that the stairway violated applicable provisions of the Los Angeles Building Code. He also submitted the declarations of two experts, Brad Avrit and Eris J. Barillas, who said the stairway was in a state of disrepair and in violation of the Los Angeles Building Code and applicable industry standards.

Bakewell objected because the plaintiff had failed to previously disclose the experts.

On Feb. 17, 2015, Perry filed for reconsideration of an order granting the motion for summary judgment to the defendants, or in the alternative, for an order shortening the time for a hearing on the motion for reconsideration.

Perry argued that Chase's demand for exchange of expert witness information was untimely, that he had served a written objection that the demand was untimely, and that defendant lacked standing to object to plaintiff's expert declarations because it had failed to timely comply with section 2034.260.

Perry obtained an order setting a hearing date of April 23, 2015, for the motion for reconsideration.

In the meantime, defendant filed an ex-parte motion arguing that Daniel Wagner, the plaintiff’s attorney, was not eligible to practice law in California. His license had been suspended in January 2015, so the hearing date for plaintiff’s motion for reconsideration had been obtained illegally.

The Supreme Court upheld the rulings of the lower courts, saying that the plaintiff had not raised any triable issues regarding notice, and excluding the expert witnesses’ testimony was not an abuse of discretion.

"When the time for exchanging expert witness information has expired before a summary judgment motion is made, and a party objects to a declaration from an undisclosed expert, the admissibility of the expert‟s opinion can and must be determined before the summary judgment motion is resolved," the opinion says. 

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