EXPERT TESTIMONY

Valencia v. Mendoza, 103 Cal. App. 5th 427

Valencia prevailed in an arbitration based on Mendoza’s alleged failure to reveal construction defects in a home purchase. Valencia moved to confirm the award. In opposition to the motion to confirm, Mendoza argued that the arbitrator did not allow his expert to contradict testimony from Valencia’s expert that Chapter 34 of the city building code required the home to undergo a complete code upgrade. The arbitrator precluded the expert from testifying that chapter 34 did not apply to the subject repairs, ruling that his testimony exceeded the scope of his deposition testimony. The motion to confirm was granted and Mendoza appealed.

The Court of Appeal affirmed. In his deposition testimony, the expert testified that he had been retained only to opine about a structural issue involving a kitchen beam. When an appropriate demand is made for the exchange of expert witness information, a party is required to disclose the general substance of the testimony the expert is expected to give at trial. If a request is made, a party must disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both. When an expert is permitted to testify at trial on a wholly undisclosed subject area, opposing parties lack a fair opportunity to prepare for cross examination or rebuttal. An expert opinion at trial exceeding the scope of deposition testimony may be excluded if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult. Valencia submitted excerpts of the expert's deposition in which he testified he had not been asked to give any opinions besides those topics on which he had been designated and deposed, which did not include Chapter 34. In light of the evidence that the expert did not disclose that he would testify about the application of Chapter 34, the arbitrator did not abuse her discretion in excluding the testimony.