Jones v. Moore

In Jones v. Moore (2000) 80 Cal.App.4th 557, the plaintiff sued her former attorney for legal malpractice after her ex-husband stopped paying marital support. At the plaintiff's expert's deposition, the expert testified that he believed the defendant's conduct fell below the standard of care when he negotiated the underlying divorce settlement and judgment. When asked whether he believed the defendant's conduct fell below the standard of care in other areas of his representation, the expert testified "Not that I'm prepared to testify to at this time." (Id. at p. 563.) When asked whether he anticipated arriving at any other opinions, the expert testified, "No, but if I do, you will be notified well in advance, so as to be able to properly exercise your discovery rights." (Id. at p. 563.) At trial, the expert testified that the defendant's conduct fell below the standard of care when he failed to properly secure the source of plaintiff's marital support income, a task unrelated to his negotiation of the underlying settlement and judgment. The trial court excluded this opinion, and the Court of Appeal affirmed, holding: "Under these circumstances, exclusion of testimony going beyond the opinions he expressed during his deposition was justified . . . When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial." (Id. at pp. 564-565.) The appellate court reasoned that the expert "was in effect not made available for deposition as to the further opinions he offered at trial . . . . He promised to notify defendant if he later formulated such opinions but did not do so." (Id. at p. 565)