Judge: Anne Hwang, Case: 21STCV14263, Date: 2023-10-27 Tentative Ruling

Case Number: 21STCV14263    Hearing Date: October 27, 2023    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 April 15, 2021, Plaintiffs Alba Maritza Perez and Danilo Santiago filed a complaint against Defendants Access Pacific, Inc., Pacific Portable Services LLC, City of Santa Monica, and Does 1 to 100 for premises liability. Answers were filed on May 21, 2021 and June 9, 2021.

On August 16, 2023 the Court signed a joint stipulation and order continuing the trial from September 18, 2023 to December 4, 2023. The order specified that all non-expert discovery will follow the previous trial date of September 18, 2023.

Defendants Access Pacific, Inc. and City of Santa Monica (Defendants) now move to reopen discovery for the limited purpose of conducting Plaintiff Alba Maritza Perez’s (Plaintiff) independent mental examination. Defendants filed this motion on October 2, 2023.

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 David Saldutti states the parties have met and conferred but are unable to resolve the issue. (Saldutti Decl. ¶ 4–6, Exh. C.) The email attached demonstrates the parties attempted to meet and confer in good faith.

DISCUSSION

Here, non-expert discovery closed on August 19, 2023. The Court must consider the four factors to determine if discovery should be reopened.

Defendants contend that on July 31, 2023, the parties exchanged expert witness information. Defendants observed that Plaintiffs had retained a psychology expert, which then prompted Defendants to retain a psychology expert as well. Defendants now wish for their psychology expert, Anne C. Welty, M.D. to conduct a psychological examination of Plaintiff.

Defendants argue they will be prejudiced if they cannot examine Plaintiff since she is alleging she suffers from psychological trauma and PTSD. However, Defendants do not explain when they discovered that Plaintiff was alleging psychological injuries. Defendants appear to argue that they only want to examine Plaintiff because Plaintiff retained a psychological expert. In opposition, Plaintiff contends that Defendants knew of her psychological injury claims while non-expert discovery was open. In particular, she points to response to Special Interrogatory, Set Five No. 37 where she states she is seeing Alfredo Crespo for PTSD symptoms. (Biren Decl. ¶ 3, Exh. 1.) This was served on February 13, 2023. Additionally, Plaintiff points to multiple letters sent to Defendants’ counsel which referred to her psychological and emotional claims. (Id. ¶ 4–6, Exh. 2–4.) This shows Defendants were aware of Plaintiff’s alleged psychological injuries while discovery was open. Moreover, the Court notes that the stipulation of the parties, filed August 16, 2023, lists the particular discovery that was still pending but did not address this issue.

Therefore, Defendants have failed to show that they acted diligently. They have not addressed the reasons why they did not seek leave earlier to conduct an IME or why they could not have their discovery motion heard earlier. Accordingly, the motion is denied.

CONCLUSION AND ORDER

Accordingly, Defendants Access Pacific, Inc. and City of Santa Monica’s motion to reopen discovery is DENIED.  

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