Judge: Anne Hwang, Case: 19STCV29265, Date: 2024-02-13 Tentative Ruling

Case Number: 19STCV29265    Hearing Date: February 13, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

            On August 19, 2019, Plaintiffs Phillip Bernard and Antoinette Bernard (“Plaintiffs”) filed this action against Defendant Bing H. “Keni” Huang (“Defendant”) after allegedly being hit by a golf ball from a golf course. Defendant filed his answer on January 14, 2020.  

On October 16, 2020, pursuant to stipulation, the Court continued trial and all related dates from February 16, 2021 to August 19, 2022.

On August 12, 2022, pursuant to stipulation, the Court continued trial and expert discovery cutoffs to November 28, 2022. Fact discovery remained closed.

At the final status conference, the parties orally stipulated to continue trial to December 12, 2022. All discovery was closed. (Min. Order, 11/15/22.)

On November 21, 2022, the Court granted Defendant’s ex parte application and continued trial and all related dates to January 27, 2023.

On January 11, 2023, the Court ordered the parties to participate in a mandatory settlement conference. The Court then continued trial, on its own, to March 24, 2023.

On March 17, 2023, the Court granted Plaintiff’s ex parte application shortening the time to hear a motion to continue trial. Pursuant to oral stipulation, the Court continued trial to June 22, 2023. All discovery was closed with the exception of Dr. Molaie. (See Min. Order, 3/17/23.)

On June 22, 2023, Plaintiffs’ counsel was engaged in another trial. Pursuant to oral stipulation, the trial was continued to October 2, 2023. All discovery remained closed. (Min. Order, 6/22/23.)

On October 2, 2023, Plaintiffs’ counsel requested a continuance since their primary expert witness was not available due to a personal health procedure. Defendant objected. The Court continued trial to November 1, 2023. All discovery remained closed.

On November 1, 2023, trial was continued to November 6, 2023 and discovery remained closed. When the case was called for trial, the parties each made peremptory challenges to judicial officers under Code of Civil Procedure section 170.6. As a result, pursuant to oral stipulation, trial was continued to March 6, 2024. Discovery remained closed. (Min. Order, 11/6/23.)

On November 15, 2023, Plaintiffs filed the instant motion to reopen discovery for the limited purpose of Plaintiff Phillip Bernard’s ongoing medical care for his brain injury.   Defendant opposes and Plaintiffs reply.  

LEGAL STANDARD

“On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.¿ This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Code Civ. Proc., section 2024.050, subd. (a).)¿ 

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“In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) The necessity and the reasons for the discovery.¿ (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿ (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿ (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”¿ (Code Civ. Proc., section 2024.050, subd. (b)(1)-(4).)¿¿¿ 

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”¿ (Code Civ. Proc., section 2024.050, subd. (c).)¿¿¿ 

MEET AND CONFER

The Declaration of Paul Markley states that on November 10, 2023, he sent Defendant’s counsel a meet and confer letter regarding stipulating to reopen discovery. (Markely Decl. ¶ 4, Exh. 1.) Therefore, it appears Plaintiffs attempted to resolve the matter in good faith.

DISCUSSION

Plaintiff Phillip Bernard (“Plaintiff”) asserts that in this case, he was hit in the head by a golf ball and started new treatment at Amen Clinic in October 2023. (Motion, 8.) Plaintiff argues the treatment is necessary and relevant for his case since it is related to the brain injury he allegedly suffered due to the golf ball. Plaintiff also argues he sent Defendant up to date treatment records on November 10, 2023, and will allow time for Defendant’s experts to review the material. (Motion, 8–9.) In the letter sent to Defendant’s counsel on November 10, 2023, Plaintiffs offered to make Plaintiff’s treating physician available for a deposition in early December 2023.

In opposition, Defendant argues that by reopening discovery, Plaintiff seeks to disguise two new experts: Dr. Amen and Dr. Storage, as his treating doctors. Defendant contends that Plaintiff actually seeks to supplant unfavorable testimony from Plaintiff’s current neuropsychiatrist expert Dr. Jeffery Schaefer, who testified that Plaintiff had no cognitive defects. (Belofsky Decl. ¶ 5–8.) Defendant argues these doctors are not Plaintiff’s actual treating physicians; instead, they merely performed another brain scan and another psychiatric examination—both of which have already occurred with existing experts. Defendant argues that by reopening discovery, he would need to depose the two new experts and then re-depose the existing four experts.

In reply, Plaintiff clarifies that reopening discovery would allow Defendant to depose Plaintiff’s only treating physician, Dr, Steven Storage. Contrary to Defendant’s characterization that Dr. Storage is not a treating physician, based on the records provided from the new treatment, it does not appear Dr. Storage is merely retained to provide a contrary medical opinion to Dr. Schaefer. The records show that Dr. Storage has implemented a multi-week plan for Plaintiff’s treatment. (See Markely Decl., Exh. 2.)

Here, Plaintiff’s counsel states he learned of Plaintiff’s new treatment on November 6, 2023. He sent the meet and confer letter on November 10, 2023, and filed this motion on November 15, 2023. Defendant received the new records in November 2023. Therefore, it appears Plaintiff was diligent. Additionally, the information appears relevant and necessary for trial since it pertains to Plaintiff’s brain injuries. The records are only from one treating physician, Dr. Steven Storage. While trial is set for March 6, 2024, Defendant does not offer a reason why all discovery could not be completed by the trial date.

Accordingly, the motion to reopen discovery for a limited purpose is granted.

CONCLUSION AND ORDER

Accordingly, Plaintiffs’ motion to reopen discovery is GRANTED. The parties should meet and confer promptly to ensure that all discovery can be completed by the current trial date.

Plaintiffs to provide notice and file a proof of service of such.