Judge: Anne Hwang, Case: 22STCV04360, Date: 2024-02-01 Tentative Ruling

Case Number: 22STCV04360    Hearing Date: February 1, 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 February 3, 2022, Plaintiff Robert Legorreta (“Plaintiff”) filed a complaint against Defendants Leonard Cabham, Walmart, Inc., and Does 1 to 50 for negligence and intentional tort after Leonard Cabham allegedly battered Plaintiff at a Walmart.

Trial was continued from August 3, 2023 to August 24, 2023 at the final status conference. (Min. Order, 7/20/23.) The discovery/motion cutoff was closed.

At the next final status conference, the parties orally stipulated to continue trial to September 11, 2023. (Min. Order, 8/10/23.) That date was eventually converted into a trial setting conference. (Min. Order, 8/23/23.)

At the September 11, 2023 trial setting conference, a jury trial and all related discovery motion cut off dates was set for January 19, 2024. (Min. Order, 9/11/23.)

Pursuant to an ex parte application by Plaintiff, the Court continued trial to February 23, 2024. All discovery remained closed. (Min. Order, 1/12/24.)

Plaintiff now moves to reopen discovery for 60 days to allow Defendant to conduct any expert witness discovery. Plaintiff filed this motion on January 10, 2024. Defendant opposes and Plaintiff 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 Jonathan Lee Borsuk states he spoke by telephone to Defendant’s counsel regarding reopening discovery. (Borsuk Decl. ¶ 7.) Therefore, it appears Plaintiff attempted to resolve the matter in good faith.

EVIDENTIARY OBJECTIONS

The Court declines to rule on Defendant’s evidentiary objections as they have no effect on the ruling herein.

DISCUSSION

As an initial matter, Defendant argues this motion cannot be brought since the attorney who filed it is not Plaintiff’s counsel of record. The Substitution of Attorney shows that Daniel Infuso from Infuso Law is the counsel of record of Plaintiff, not DRE, A.P.C. (Substitution of Counsel, 5/17/22.) Code of Civil Procedure section 285 provides: “[w]hen an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party. Until then he must recognize the former attorney.” “The purpose of these statutes is to have the record of representation clear so the parties may be certain with whom they are authorized to deal.” (McMillan v. Shadow Ridge at Oak Park Homeowner's Assn. (2008) 165 Cal.App.4th 960, 965.) Under this rule, Defendant should have only recognized Plaintiff’s former counsel until they received written notice of a substitution of attorney. (See id. at 966.) However, on January 25, 2024, Plaintiff filed a Notice of Association of Counsel for the counsel who filed the instant motion. Therefore, it appears the defect has been cured.

Plaintiff seeks to reopen discovery since his former counsel missed the expert designation deadline. Plaintiff would like to give Defendant the opportunity to conduct expert witness discovery before trial. Plaintiff argues Defendant will not be prejudiced by a delay in trial since during the January 4, 2024 final status conference, the parties were not ready. Additionally, since the last trial date of September 11, 2023 and previous trial date of January 19, 2024, counsel for both parties have been changed and require time to familiarize themselves with the case.

Plaintiff argues there is no evidence that he acted unreasonable when failing to comply with the expert witness demand and informally disclosed his experts while discovery was still open. (Motion, 11, 12.)

Defendant argues that Plaintiff was dilatory in not conducting expert discovery and had opportunities to depose Defendant’s experts on two occasions. (Opp., 4.) Defendant asserts that on February 28, 2023, it served a Demand for Exchange of Expert Witnesses. (Gessford Decl. ¶ 8, Exh. G.) Defendant served its Designation of Expert Witnesses on June 14, 2023. (Id., Exh. H.) Trial and discovery was later continued and reopened to January 19, 2024. Defendant contends that Plaintiff had until November 30, 2023 to designate experts, but failed to do so. (Opp., 7.) Additionally, during this time, Plaintiff failed to depose any of Defendant’s eight designated experts. Defendant indicates that counsel for both parties became associated with the case around December 2023. Lastly, Defendant argues that Plaintiff seeks to designate late experts, but has not complied with the requirements for making such a motion under Code of Civil Procedure sections 2034.710 and 2034.720.

Although Plaintiff asserts that prior trial counsel abruptly left the firm “several weeks ago,” and “within the last two weeks,” associate counsel also abruptly left the firm, Plaintiff does not provide any specific facts relating to the failure to designate experts or conduct discovery. (Borsuk Dec. ¶ 5.) There is no declaration or other evidence from prior counsel regarding any excusable neglect, or any diligence. In addition, Plaintiff’s argument regarding the necessity and reasons for discovery is unspecific and unclear – Plaintiff appears to be arguing that experts are not necessary to prevent a dismissal of the case, and at the same time does not provide for the Court any facts regarding the experts at issue. (Motion at pp. 14-15.) Finally, reopening discovery would likely prevent the case from going forward.

CONCLUSION AND ORDER

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

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