Judge: Anne Hwang, Case: 19STCV32839, Date: 2024-02-07 Tentative Ruling

Case Number: 19STCV32839    Hearing Date: February 14, 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 September 13, 2019, Plaintiff Jose Martin (“Plaintiff”) filed a complaint against Defendant Angelina & Katherine Garden, LLC (“Defendant”) for premises liability and negligence after allegedly being injured on Defendant’s construction site. Plaintiff now moves to reopen discovery for the limited purpose of conducting the depositions of Defendant’s two owners, Wafik Bishai and George Toro, and its person most knowledgeable (“PMK”).

The complaint was filed on September 13, 2019. Trial was initially set for March 12, 2021. 

Defendant’s answer was filed on March 9, 2020.  

On November 10, 2020, pursuant to stipulation, the Court continued trial and all related dates to September 13, 2022.  

On June 21, 2022, pursuant to stipulation, the Court continued trial and all related dates to April 27, 2023. The Court noted there would be no further continuance absent good cause.  

On March 20, 2023, pursuant to stipulation, the Court continued trial and all related dates to September 25, 2023. 

On September 8, 2023, pursuant to stipulation, the Court continued trial and expert discovery deadlines only, from September 25, 2023 to February 29, 2024.  

On February 7, 2024, the Court granted Plaintiff’s motion to continue trial and all expert discovery deadlines to April 24, 2024. Fact discovery remained closed.

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).)¿ 

¿¿ 

“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 Jennifer Bagosy states that on October 13, 2023, she met and conferred with Defendant’s counsel via telephone to allow the additional depositions. (Bagosy Decl. ¶ 8.) Therefore, it appears Plaintiff attempted to resolve the matter in good faith.

DISCUSSION

As an initial matter, though Defendant argues that a motion to reopen discovery under section 2024.050 cannot be brought after the deadlines in section 2024.020, it fails to present persuasive authority. Therefore, the Court finds this motion is timely.

Plaintiff alleges he was injured at Defendant’s construction site (at an apartment complex) when a gate fell on him and caused injuries to his head, brain, and spine. Plaintiff was hired to provide trash removal services by Defendant’s general contractor for the site, MGK Builders, Inc. (“MGK”). Plaintiff argues that after consulting his safety expert, Brad Avrit, he discovered that he requires more information about the condition of the gate before construction began and before MGK became general contractor. (Motion, 1.) As a result, Plaintiff only seeks to reopen discovery to conduct the depositions of Defendant’s two owners, Wafik Bishai and George Toro, and its PMK.

Plaintiff first argues good cause exists to reopen discovery because he relied on the September 11, 2023 court order stating that all discovery cutoffs were based on the continued trial date of February 29, 2024. This argument does not establish good cause because the case was not called for hearing on September 11, 2023, but rather the continuance was due to a joint stipulation expressly providing that only expert discovery remained open. (Compare Minute Order Dated September 11, 2023 with Stipulation and Order Dated September 8, 2023.) Even so, Plaintiff does not explain how this shows diligence to seek discovery in this case since fact discovery closed on August 26, 2023. (See Code Civ. Proc. § 2024.020(a) [thirty days before the then-trial date of September 25, 2023].) Also, Defendant’s efforts to correct the minute order through an ex parte application do not appear to explain why Plaintiff did not seek a motion to reopen discovery sooner, knowing it was disputed.  

Plaintiff argues Defendant will not be prejudiced since the depositions will not impact the trial date of April 24, 2024. Additionally, Plaintiff asserts that only two depositions may be required, since Defendant’s principals are likely the persons most knowledgeable. However, Defendant argues it has already expended substantial time ensuring its retained experts are prepared to testify for trial and points to the multiple continuances and opportunities to conduct discovery in this case. (Opp., 8.)

Moreover, Plaintiff sets forth no facts about when his safety expert Brad Avrit informed him that the depositions were required. Therefore, the Court cannot ascertain Plaintiff’s diligence, or lack thereof, in seeking the depositions. Additionally, Plaintiff does not set forth the necessity of the discovery in sufficient detail.

Accordingly, the motion to reopen discovery is denied. The Court declines to award monetary sanctions.

CONCLUSION AND ORDER

Accordingly, Plaintiff’s motion to reopen discovery is DENIED.

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