Judge: Anne Hwang, Case: 21STCV45959, Date: 2024-03-18 Tentative Ruling

Case Number: 21STCV45959    Hearing Date: March 18, 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 December 16, 2021, Plaintiff Keola Moku (“Plaintiff”) filed a complaint against Defendants Robby Enajeroh and Does 1 to 40 for negligence resulting from a motor vehicle accident. Defendant Robby Enajeroh (“Defendant”) filed his answer on February 14, 2022.

            On April 27, 2023, pursuant to stipulation, the Court continued trial and all related deadlines to February 1, 2024.

            At the January 18, 2024 final status conference, pursuant to oral stipulation, the Court continued trial to February 15, 2024. All discovery remained closed and the pre-trial motion cut off was in effect. (Min. Order, 1/18/24.)

            On January 26, 2024, the Court granted in part Defendant’s ex parte application, and continued trial to May 8, 2024. All discovery remained closed subject to any motions to reopen discovery.

On January 24, 2024, Defendant filed the instant motion to reopen expert discovery in order to complete expert depositions. In the alternative, Defendant seeks a protective order to conduct the depositions of Defendant’s expert witnesses on a different date. Defendant also seeks monetary sanctions. Plaintiff opposes and Defendant replies.

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 Gina Y. Kandarian-Stein states that on January 18, 2024 and January 22, 2024, she offered to waive the expert deadline to complete the expert depositions. (Kandarian-Stein Decl. ¶ 15–17.) Plaintiff did not agree to reopen expert discovery. Therefore, it appears Defendant attempted to resolve the matter in good faith.

DISCUSSION

Here, the parties disclosed experts on December 13, 2023. The expert discovery deadline was January 17, 2024. On January 4, 2024, Plaintiff noticed depositions for three of Defendant’s experts, set for January 17, 2024. The experts were unavailable that day, did not appear, and therefore, Plaintiff obtained certificates of non-appearance. Defendant states that due to mistake, inadvertence, and excusable neglect, the dates were improperly calendared and therefore, no objections were served. (Motion, 3.) Defendant then offered available deposition dates for the experts in January. (Exh. C, D.)

Plaintiff alleges orthopedic injuries and loss of earnings from the motor vehicle accident that occurred on May 8, 2020. Plaintiff claims he was unable to work consistently until December 2020. Defendant designated three experts on December 13, 2023: Jennie McNulty, CPA, MBA, a forensic economist; Steven Molina, PhD, a vocational rehabilitation expert; and Dr. Nagelberg, a board-certified Orthopedic Surgeon.

Defendant also states that it served non-retained experts Dr. Gallagher and Dr. Hanna with subpoenas on January 17, 2024 and January 18, 2024 respectively, for depositions to occur on January 23, 2024. The experts were unavailable for depositions on January 23, 2024, and indicated they would attempt to reschedule. (Kandarian-Stein ¶ 7.)

In opposition, Plaintiff argues that Defendant failed to object to the deposition notices, and therefore, waived any deficiencies. Additionally, Plaintiff points out that Dr. Gallagher and Dr. Hanna are Plaintiff’s treating doctors, and that Defendant has known their identities since December 2021. (Opp., 5.)

The Court finds a sufficient basis to reopen discovery for the limited purpose of conducting depositions of Defendant’s experts Jennie McNulty, Steven Molina, PhD, and Dr. Nagelberg, and of Plaintiff’s experts Dr. Gallagher and Dr. Hanna. As for Defendant’s experts, it appears that Defendant attempted to secure the attendance of his witnesses at the January 17, 2024 deposition and appears to have acted diligently in attempting to schedule the depositions on alternative dates. (Kandarian-Stein Decl. ¶ 11–14.) The reasons presented for the need for this discovery is to prevent exclusion of these witnesses at trial.

As for Plaintiff’s experts, Plaintiff asserts that “these doctors’ identities have been known to Defendant since before the lawsuit was filed in December of 2021.” (Opposition at p. 5.) However, no specificity or evidence has been presented with regard to what was disclosed to Defendant about these treating physicians. Defendant argues that Defendant was not aware that Plaintiff would designate them as non-retained experts until December 13, 2023, and thereafter attempted to scheduled their depositions. Based on the limited information presented by both parties on this issue, it appears that the discovery is necessary and Defendant has provided a sufficient reason for not pursuing the discovery earlier. Moreover, it does not appear that the limited depositions that are pending will result in a further continuance of the trial date.

The Court declines to order monetary sanctions because Defendant was tardy and there was substantial justification for Plaintiff’s opposition.

In light of the Court’s ruling herein, Plaintiff’s Motion to Exclude Defendant’s Expert Witness Testimony appears to be moot. Plaintiff shall cancel the court reservation for that hearing.

CONCLUSION AND ORDER

Accordingly, Defendant’s 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.

The hearing on Plaintiff’s Motion to Exclude set for April 11, 2024 is advanced and vacated. Plaintiff shall cancel the court reservation for that hearing.

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