The trial court did not abuse its discretion in excluding the defendants' experts when defendants stipulated that their experts could be called only to rebut the factual bases for the opinions of plaintiff's experts and there was no showing that they were going to do so, said the Second District Court of Appeal in Tesoro del Valle Master Homeowners Association v. Griffin (Oct. 3, 2011, B222531), __ Cal.App.4th __ [2011 DJDAR 16109].
Plaintiff timely disclosed its expert witnesses, but defendants filed their disclosure three weeks late. The trial court granted plaintiff's motion to strike the defendants' designation. "As a means of resolving [plaintiff's] motion to preclude [defendants] from offering any expert testimony," the parties stipulated that defendants could call plaintiff's experts, and could call their own experts to rebut the factual bases for opinions offered by plaintiff's experts, but could not call their own experts to offer rebuttal opinions.
At trial, defendants wanted to call their experts to offer rebuttal opinions. On appeal they argued that the trial court abused its discretion by not permitting their experts to offer their opinions.
First, said the court of appeal, by stipulating not to offer expert witness opinions, defendants waived any claim that the court abused its discretion by enforcing the stipulation. Second, the stipulation conferred no more rights on defendants than they would otherwise be entitled to by statute, which permits a party to call an expert witness to impeach another party's expert. Under Code of Civil Procedure §2034.310, an undesignated impeachment witness may testify only to the falsity or nonexistence of any fact used as a foundation for the other expert's opinion, and may not offer testimony that contradicts that opinion. Since there was no indication that the proposed testimony satisfied the statutory requirements, the rebuttal experts were properly excluded.