Judge Audra Mori, Case 21STCV07425 2023-02-27 Tentative Ruling

Plaintiff Lucero Castro (“Plaintiff”) filed this action against Defendant 99 Cents Only Stores, LLC (“Defendant”) for injuries relating to Plaintiff’s alleged slip and fall in Defendant’s store on June 15, 2019.

This action was previously set for trial for March 9, 2023. On January 18, 2023, Defendant’s ex parte application to continue trial was granted and the March 9, 2023 trial date was continued to June 27, 2023. Only the expert discovery deadline was continued with the new trial date. All fact discovery remained related to the March 9, 2023 date. (Min. Order, Jan. 18, 2023.) This would mean that fact discovery closed this month on February 7, 2023.

At this time, Defendant moves to reopen discovery to correspond with the June 27, 2023 trial date.[1] Plaintiff opposes the motion, and Defendant filed a reply.

Defendant contends that it is looking for a limited extension to conduct additional witness depositions, subpoena additional medical records, and serve supplemental discovery. Defendant asserts that it needs to conduct additional depositions of Plaintiff’s family members that have knowledge of her pain and suffering and are likely to be introduced as witnesses at trial. Defendant states that the individuals were identified at Plaintiff’s deposition, but Plaintiff’s counsel refused to disclose their contact information, and Plaintiff did not identify the individuals in response to written discovery. Further, Defendant contends that it has been unable to obtain Plaintiff’s pre-incident medical records because Plaintiff’s signed authorization is required, but Plaintiff has ignored Defendant’s attempts to obtain such. Additionally, Defendant avers it will be prejudiced if the discovery cutoff deadline is not extended since Defendant would be unprepared at trial to refute any arguments regarding Plaintiff’s alleged injuries.

In opposition, Plaintiff argues that Defendant has delayed in seeking relevant discovery as Plaintiff’s deposition was completed on October 1 and October 19, 2021, but Defendant did not meet and confer with Plaintiff about the alleged damages witnesses until January 4, 2023. Plaintiff asserts that although the parties scheduled mediation in this action in late 2022, mediation still has not occurred. Plaintiff argues she has been diligent in obtaining discovery, while Defendant failed to do so. Lastly, Plaintiff requests sanctions against Defendant for bringing this motion.

In reply, Defendant contends that unlike Plaintiff argues, Defendant did not abandon discovery and instead served supplemental discovery, subpoenaed Plaintiff’s medical records, and noticed a medical examination of Plaintiff. Defendant asserts that it waited to conduct the witness depositions with the hope that the case could be settled at mediation, and that Defendant has otherwise attempted to meet and confer with Plaintiff to resolve these issues. Defendant argues that the discovery it seeks is relevant to Plaintiff’s claims and damages, and Defendant contends that reopening discovery for the requested limited purpose will not prejudice Plaintiff.

(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 is seeking to reopen discovery to conduct additional depositions of persons that have knowledge of Plaintiff’s pain and suffering claims, to obtain medical records relevant to Plaintiff’s claims, and to serve supplemental discovery on Plaintiff. Second, as to the reasons discovery was not completed earlier, Defendant asserts that Plaintiff did not disclose the witnesses’ contact information at her deposition and did not identify the witnesses in Plaintiff’s responses to written discovery. Defendant asserts that Plaintiff’s counsel has refused to provide their contact information or voluntarily produce the witnesses for deposition. Further, Defendant asserts that Plaintiff ignored Defendant’s attempts to meet and confer about obtaining Plaintiff’s pre-incident medical records. Defendant does not justify the failure to propound another set of discovery on Plaintiff prior to the discovery cutoff or show that another set is needed. While Plaintiff argues that Defendant delayed in conducting any discovery for over a year, and no motions to compel were timely filed by Defendant, Defendant argues that it waited to conduct the depositions to avoid incurring unnecessary expenses if the case could be settled at mediation, but Plaintiff has delayed in participating in mediation.

In this case, Defendant has not demonstrated a great deal of diligence in conducting discovery, and Plaintiff has not been cooperative in providing requested information either. As to the third factor, trial is currently set for June 27, 2023, so reopening discovery will not delay the trial date because the parties will have sufficient time to complete the remaining discovery, which will may the case to be tried on the merits. Moreover, Defendant argues that Plaintiff will not be prejudiced by reopening discovery. Plaintiff does not meaningfully articulate any prejudice she will suffer if discovery is reopened. Finally, the trial date was continued to June 27, 2023, on January 18, 2023. Defendant then filed this motion on January 27, 2023. There is no evidence that Defendant delayed in filing this motion after Defendant attempted to meet and confer with Plaintiff to resolve the issues presented in this motion.

In weighing the relevant factors, Defendant demonstrates additional discovery is warranted to fully prepare for trial and evaluate Plaintiff’s damages. Furthermore, given trial is currently set for June 27, 2023, there is time for additional discovery to take place.

Defendant’s motion to reopen discovery is granted for the limited purpose of conducting depositions of Plaintiff’s identified family members with knowledge of the incident and subpoenaing medical records. The discovery and motion cutoff dates are to be based on the June 27, 2023 trial date.

Hon. Audra Mori

Judge of the Superior Court

[1] Although Defendant’s motion is captioned as a Motion to Continue Trial Including the Reopening of the Discovery Cutoff Deadline, Defendant does not request, and is not seeking, to continue the June 27, 2023 trial date, Instead, Defendant seeks only to reopen fact discovery to run with the current trial date.