Tardy Motion to Designate Expert Witness Should Have Been Granted

Thursday, September 27, 2018

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Tardy Motion to Designate Expert Witness Should Have Been Granted—C.A.

Opinion Reverses $400,000 Award to Sex-Abuse Victim Based on Judge’s Refusal To Reset Expired Deadlines When the Defendant Brought in a New Attorney

By a MetNews Staff Writer

CHRISTINE HUBBS

‘Hummer Mom’

The First District Court of Appeal has reversed a $400,000 judgment of awarded to a minor for emotional distress caused by his abuser because the trial court prejudiced the defendant by not reopening discovery so her newly-retained counsel could designate an expert.

The opinion by Justice Stuart R. Pollak of Div. Three was filed Tuesday and not certified for publication. It reverses the judgment after a two-day bench trial, presided over by Alameda Superior Court Judge Frank Roesch.

The defendant, Christine Hubbs, in 2011 pled no contest to one count of unlawful sexual intercourse with a minor under 16 and three counts of lewd acts on a child based on her affairs with the plaintiff (identified as “Minor Doe 1” in the opinion) and his friend, when the boys were 14. Hubbs—who was dubbed the “Hummer Mom” in news reports because she drove the boys in her Hummer to various spots in in Livermore to have sex—served two-and-a-half years of a five-year sentence.

The plaintiff sued Hubbs in March 2012. He also named her husband, Timothy Hubbs, claiming the man should have stopped his wife, but the husband was granted a motion for nonsuit which was not challenged on appeal.

Hubbs initially had the assistance of counsel in the case, but that lawyer was relieved after indicating that Hubbs was unable to pay her fees. Hubbs, in pro per, requested a continuance of the trial date in order to obtain new counsel, which Roesch denied with leave to resubmit the motion if she did find another lawyer.

New Attorney’s Motion

Hubbs retained Robert J. Beles of Oakland in July 2013, just over a week after the discovery cut-off date. Beles filed a motion to continue the trial and reopen discovery.

The new attorney cited the fact that previous counsel had done only a small amount of written discovery, and had not designated an expert. Beles said he would need to depose the plaintiff and his expert, obtain certain documents, and retain and designate a defense expert.

Roesch continued the trial to December 2013, but declined to reopen discovery or permit Beles to designate a defense expert.

Pollak’s Opinion

Pollak’s opinion rejects the plaintiff’s contention that he would have been prejudiced by a reopening of discovery. The jurist wrote:

“There is no dispute that defendant’s new attorney acted diligently by immediately moving to reopen discovery. While the court was understandably concerned about plaintiff’s welfare, the court appropriately determined that his interest in promptly resolving his claim for damages was insufficient to outweigh defendant’s need for a continuance. Having granted the continuance, plaintiff’s anxiety would not have been exacerbated by permitting the defense to make use of the additional time to prepare a meaningful defense.”

He continued:

“Contrary to plaintiff’s argument, defendant undoubtedly was severely prejudiced by the lack of adequate discovery and the inability to present a defense expert. There was no dispute that defendant had unlawfully engaged in sexual conduct with plaintiff; the only issue at trial was how this relationship had affected plaintiff’s state of mind and mental health. As the result of defendant’s inability to reopen discovery, the trial consisted of a one-sided presentation on this critical issue.”

Defenses Unavailing

In light of the possibility of a retrial, Pollak also addressed and rejected two defenses raised by Hubbs.

The defendant alleged that the plaintiff had consented to the affair, and so she should not be held liable for her violations of Penal Code §261.5 and §288a, both of which prohibit certain acts with minors. Pollak noted that “consent is not a defense to an illegal act which is prohibited for the protection of a particular class.”

Hubbs also contended that damages for the plaintiff’s embarrassment when people learned his identity were inappropriate, because Hubbs herself had not disclosed that information.

Pollak explained:

“We disagree that plaintiff was required to allege a separate privacy-based tort. As the court explained, such damages were recoverable if plaintiff established that the injuries he suffered as a result of publicity surrounding the crime was proximately caused by defendant’s conduct.”

The jurist noted that in the event of a new trial, Hubbs would be free to reassert her demand for a jury trial, another issue raised on appeal.

The case is Minor Doe 1 v. Hubbs, A143158.

Hubbs’s case attracted nationwide publicity, which included an interview with her on Good Morning, America while she was in prison. She is now a registered sex offender and must wear an ankle bracelet which allows tracking of her whereabouts.