Judge Audra Mori, Case 20STCV23865 2022-10-11 Tentative Ruling

Plaintiff Hoa Trung Mac (“Plaintiff”) filed this action against Defendant Danny Xinh Danh Chau (“Defendant”) for damages arising out of an automobile vs. motorcycle accident. This matter was previously set for trial on September 22, 2022. At a Final Status Conference on September 8, 2022, the trial date was continued to February 22, 2023, pursuant to an oral stipulation between the parties.

Defendant, at this time, moves to reopen discovery and motion cut-off dates to correspond with the current trial date. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant asserts that he has attempted to meet and confer with Plaintiff regarding multiple discovery issues, but the parties have not resolved the disputes. Defendant states that following the September 8, 2022 Final Status Conference, where Plaintiff did not agree to reopen discovery, Defendant reserved the first available hearing date for this motion. Defendant argues there is good cause to reopen discovery to allow a medical examination of Plaintiff, supplemental discovery, and for both parties to participate in expert discovery.

In opposition, Plaintiff contends that Defendant has not been diligent in completing discovery, and that Defendant retained his medical expert on July 12, 2022, without regard to the expert’s ability to complete a medical exam prior to the discovery cut-off. Plaintiff argues Defendant’s conduct required the trial continuance, and that Defendant’s motion lacks evidentiary support. Additionally, Plaintiff requests monetary sanctions against Defendant.

In reply, Defendant contends discovery should be reopened because the trial date has been continued, and that Plaintiff’s request for sanctions should be denied.

(a) 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.

(b) 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:

(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.

First, as to the necessity and reasons for the discovery, Defendant asserts that Plaintiff has refused to appear for a medical examination with Defendant’s expert, and that Defendant intends to propound supplemental discovery to ensure that Defendant has Plaintiff’s most recent medical and billing records. Second, Defendant avers that the reason discovery was not completed before the earlier discovery cut-off was because of defense counsel’s inadvertence, mistake, and excusable neglect. Defendant provides his expert was unavailable to examine Plaintiff 30 days before the prior trial date. Plaintiff, in opposition, contends Defendant failed to act diligently. Plaintiff asserts that November 2, 2021, was designated as the expert exchange date, but Defendant did not notice Plaintiff’s expert’s depositions, and that Defendant improperly set Plaintiff’s medical exam for after the prior discovery cut-off date. Admittedly, it is unclear why Defendant could not complete the relevant discovery prior to this date.

Nonetheless, as to the third factor, trial is set for February 22, 2023, so reopening discovery will not delay the trial date because the parties will have sufficient time to complete the remaining discovery. Moreover, Defendant contends Plaintiff will not be prejudiced by reopening discovery because trial is over four months away, so the case will not be delayed. Plaintiff does not argue or identify any potential prejudice Plaintiff will suffer if discovery is reopened to allow the relevant discovery to be completed. Finally, the case was previously set for trial on September 22, 2022, before that date was continued to February 22, 2023, pursuant to the parties’ oral stipulation. Additionally, Defendant provides evidence showing he attempted to meet and confer multiple times regarding the relevant discovery issues prior to filing this motion, and then filed this motion within days of the parties not resolving the issues. There is no evidence that Defendant delayed in filing this motion after Plaintiff did not agree to appear for a medical exam with Defendant’s expert.

In weighing the relevant factors, Defendant demonstrates additional discovery is necessary to fully prepare for trial and ascertain the extent of Plaintiff’s medical damages. Furthermore, given trial is currently set for February 22, 2023, there is no apparent prejudice to Plaintiff is allowing discovery to be reopened.

Defendant’s request to reopen discovery is granted for the limited purpose of allowing a medical examination of Plaintiff to go forward, to allow the parties to serve supplemental discovery requests, and to allow the parties to complete expert discovery. The discovery and motion cut-off date is to be based on the February 22, 2023 trial date.

Hon. Audra Mori

Judge of the Superior Court