Judge: Anne Hwang, Case: 22STCV35550, Date: 2024-11-08 Tentative Ruling

Case Number: 22STCV35550    Hearing Date: November 8, 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

MOTION

            Defendant Tengyuan Ma (“Defendant”) moves to reopen discovery for the limited purpose of conducting a neuropsychological examination of Plaintiff Jose Rafael Espinosa Mena (“Plaintiff”). Plaintiff opposes and Defendant replies.

BACKGROUND

The complaint was filed on November 9, 2022, alleging negligence based on a motor vehicle collision that occurred on September 15, 2022. Trial was initially set for May 8, 2024.

Defendant’s answer was filed on December 21, 2022.

On March 14, 2024, pursuant to stipulation, the Court continued trial and related dates to September 16, 2024.

On August 16, 2024, the Court granted Defendant’s ex parte application and continued trial to December 2, 2024. The discovery and pre-trial motion cut-off dates remain associated with the previous September 16, 2024 trial date unless stipulated by the parties or through a noticed motion to reopen discovery. (Min. Order, 8/16/24.)

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 Jeffrey E. Garcia, Defendant’s counsel, does not describe a meet and confer to reopen discovery.

DISCUSSION

Defendant asserts that Plaintiff failed to disclose an October 2023 brain MRI until expert designations were due on July 29, 2024. (Garcia Decl. ¶ 2, Exh. A.) Before this date, Defendant asserts that Plaintiff represented that all relevant medical information had been provided. Defendant also argues that Plaintiff’s treating providers indicated in depositions that they were unaware of any neuropsychological testing or treatment.  (Id. ¶ 8.) Defendant contends this omission limited him from assessing Plaintiff’s claimed injuries. As a result, Defendant asks to reopen discovery to conduct a neuropsychological examination of Plaintiff. Defendant asserts that granting the motion will not affect the current trial date since his expert Dr. Delis is available to conduct the examination before trial.

Therefore, Defendant argument for granting this motion rests on the theory that the October 2023 MRI was essential to finding that a neuropsychological examination was needed. However, in opposition, Plaintiff argues Defendant started planning three examinations in March 2024: an orthopedic, neurological, and neuropsychological examination. Plaintiff further asserts that Dr. Delis was scheduled to examine Plaintiff on June 12, 2024, but that it was unilaterally cancelled by Defendant; therefore, Defendant was not diligent.

Plaintiff also contends that he already appeared for a mental and physical examination with a neurologist on June 11, 2024, and that Defendant’s expert Dr. Delis will not be prejudiced from rendering an opinion since he can rely on Plaintiff’s examination with his expert Dr. Schaefer. Plaintiff also asserts he will not argue at trial that Dr. Delis’ opinions lack foundation because he did not examine Plaintiff. (Opp., 1.) Plaintiff further argues that the October 2023 MRI report was not previously disclosed because it was being produced by his experts, and subject to his discovery objection that the requests sought premature disclosure of expert opinion. (Opp., 5-6.)

In reply, Defendant argues the existence of the MRI was not expert opinion. He further contends he cancelled the June 12, 2024 neuropsychological examination because there was no evidence that Plaintiff was tested or treated for these injuries. Defendant also argues that the credibility of Dr. Delis could be weakened at trial since he did not personally examine Plaintiff. Defendant also contends the psychological examination that already took place is different from a neuropsychological examination and has no bearing on the issue here.

Therefore, in light of Plaintiff’s failure to produce the MRI report from October 2023 and because there was no evidence that Plaintiff underwent any neuropsychological testing or treatment until disclosure of the report, it appears that Defendant acted reasonably diligently to continue trial and reopen discovery after learning of the MRI report on July 29, 2024. Additionally, it appears that the examination can be conducted before the trial date. Therefore, the motion to reopen discovery for the limited purpose of conducting the neuropsychological examination with Dr. Delis is granted.

CONCLUSION AND ORDER

Accordingly, Defendant’s Motion to Reopen Discovery for the Limited Purpose of Completing an Independent Medical Examination is GRANTED.

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

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

MOTION

Defendant Tengyuan Ma (“Defendant”) moves to continue trial to the conduct the examination that was the subject of the concurrently heard motion to reopen discovery. Defendant also seeks a continuance based on counsel’s unavailability on the December 2, 2024 trial date. Plaintiff Jose Rafael Espinosa Mena (“Plaintiff”) opposes and Defendant replies.

ANALYSIS 

Legal Standard 

¿“Continuances are granted only on an affirmative showing of good cause requiring a continuance.”¿ (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)¿ A trial court has broad discretion in considering a request for a trial continuance.¿ (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)¿ California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.¿ 

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332(a).)  

“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332(b).) 

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: 

1.        The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 

2.        The unavailability of a party because of death, illness, or other excusable circumstances; 

3.        The unavailability of trial counsel because of death, illness, or other excusable circumstances;  

4.        The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; 

5.        The addition of a new party if: 

A.      The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or 

B.       The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; 

6.        A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or 

7.        A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”  

(Cal. Rules of Court, rule 3.1332(c).) 

“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: 

1.     The proximity of the trial date; 

2.     Whether there was any previous continuance, extension of time, or delay of trial due to any party; 

3.     The length of the continuance requested; 

4.     The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; 

5.     The prejudice that parties or witnesses will suffer as a result of the continuance; 

6.     If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; 

7.     The court’s calendar and the impact of granting a continuance on other pending trials; 

8.     Whether trial counsel is engaged in another trial; 

9.     Whether all parties have stipulated to a continuance; 

10.    Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and 

11.    Any other fact or circumstance relevant to the fair determination of the motion or application. 

(Cal. Rules of Court, rule 3.1332(d).) 

Discussion 

Defendant’s lead trial counsel argues he is unavailable for trial on December 2, 2024 due to a long-standing family engagement. (Bigley Decl. ¶ 5.) He also asserts he has a summary judgment hearing on December 11, 2024 in San Francisco Superior Court, and will be unavailable the following week for a few days. (Id. ¶ 6.) Defendant also contends that the continuance will serve to complete the examination discussed in the concurrently heard motion to reopen discovery.

As a result, Defendant requests a continuance to December 16, 2024, or January 13, 2025.

In opposition, Plaintiff’s counsel contends he is unavailable in late December 2024, and has eight trials scheduled in January and February 2025.

Defendant’s counsel fails to state that appearing in-person for the summary judgment hearing is mandatory, but asserts the case involves multiple parties. (Bigley Decl. ¶ 6.) Nevertheless, Plaintiff has not shown that trial on December 12, 2024 would be unfeasible, especially given counsels’ trial schedule in January and February 2025. Therefore, the Court finds good cause for a brief continuance.

Accordingly, the Court grants the motion to continue trial.

CONCLUSION AND ORDER 

The Court GRANTS Defendant’s motion to continue trial.

The Final Status Conference is continued to November 21, 2024 at 10:00 a.m. in Department 32 of the Spring Street Courthouse. 

Trial is continued to December 12, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse. 

 All discovery and pre-trial motion cut-offs will not be affected by this order.

Defendant shall give notice of this order, and file a proof of service of such.