Judge: Audra Mori, Case: 21STCV11538, Date: 2022-08-29 Tentative Ruling

Case Number: 21STCV11538    Hearing Date: August 29, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Michele Kramer (“Plaintiff”) filed this action against Defendant SC26 1, LLC (“Defendant”) for damages arising from trip and fall at Defendant’s property Plaintiff allegedly suffered when she was walking out of her apartment.  Trial is currently set for September 22, 2022.   

Defendant now moves to continue the current trial date for a period of two months, or to a date thereafter.  Plaintiff opposes the motion, and Defendant filed a reply. 

2. Motion to Continue Trial and Reopen Discovery

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.  (CRC Rule 3.1332(c).)  The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance.  (CRC Rule 3.1332(c).) The Court may look to the following factors in determining whether a trial continuance is warranted:  (1) proximity of the trial date; (2) whether there was any previous continuance 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; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial.  (See generally, CRC Rule 3.1332(d)(1)-(11).)  Additional factors for the Court to consider include: a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application.  (CRC Rule 3.1332(c), (d).)

As to a request to reopen discovery, CCP § 2024.050 states:

(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:

(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.

Here, Defendant contends there is good cause to continue the trial date because Defendant has not completed its discovery and investigation, the parties have not yet exchanged expert designations, and Defendant’s counsel has multiple scheduling conflicts with the current trial date.  Further, Defendant moves for an order reopening discovery for the parties to complete discovery, including for Defendant to obtain a defense medical examination of Plaintiff. 

In opposition, Plaintiff argues that Defendant’s motion is based on Defendant’s counsel’s own unforced errors and mistakes, and that Defendant does not establish good cause for a trial continuance or reopening discovery.  Plaintiff contends that delaying trial will unfairly prejudice her, and that there is no reason Defendant cannot go to trial on the current trial date.  Additionally, Plaintiff asserts Defendant did not properly submit a declaration concerning his efforts to meet and confer prior to filing the instant motion. 

Defendant, in reply, avers it has met and conferred with Plaintiff, but no resolution was reached, and that granting a trial continuance and reopening discovery will promote just resolution of the case on the merits. 

            While Plaintiff does not deny meeting and conferring with Defendant, Plaintiff argues Defendant did not submit an adequate meet and confer declaration as required by CCP § 2024.050(a).  However, defense counsel submits a declaration attesting to contacting Plaintiff’s counsel regarding reopening discovery, which Plaintiff’s counsel did not agree to.[1]  (Mot. Dunkin Decl. ¶ 6.)  The Court finds this sufficient to satisfy the meet and confer requirement in this case.[2]

            Turning to factors that the court considers in deciding whether to reopen discovery, first, as to the necessity and reasons for the discovery, Defendant’s counsel admits that discovery was not completed because of inadvertent mis-calendaring on the part of defense counsel.  However, Defendant avers the discovery is necessary to properly prepare for trial on Plaintiff’s claims, including obtaining a defense medical examination of Plaintiff.  While Plaintiff contends the medical examination would hurt Plaintiff’s case, Plaintiff does not deny she is claiming damages for physical injuries allegedly caused by Defendant or that a defense medical examination is contemplated by CCP § 2032.220.  Section 2032.220 states in relevant part, “(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff…”  Second, Defendant asserts that it has been diligent in conducting discovery and in attempting to resolve these issues once they were discovered.  There is no evidence that Defendant has delayed in seeking to reopen discovery after learning of defense counsel’s calendaring errors.  

            Third, while it is unclear that reopening discovery will permit the parties to proceed to trial on September 22, 2022, Defendant simultaneously requests a short trial continuance, which if granted, would allow the parties to adequately prepare for trial on the new trial date.  Finally, there have been no prior trial continuances in this matter, and Plaintiff does not dispute that there will otherwise be sufficient time to complete discovery and prepare for trial if discovery is reopened and a short trial continuance granted. 

            Therefore, the Court finds good cause to reopen discovery. 

            As to the request to continue the trial date, the factors assessed in determining whether to continue trial weigh in favor of a continuance.  There have not been any prior trial continuances in this matter, and Defendant has filed this motion almost one month before trial instead of waiting until the eve of trial to make the request.  In addition, defense counsel attests that it is currently scheduled to conduct seven trials in September 2022.  Defendant avers that if the trial date is continued, and that the parties are permitted to complete discovery, the parties will be in a better position to informally resolve this action.  Although Plaintiff contends she will be severely prejudiced if the continuance is granted, Plaintiff merely argues she will be forced to undergo a medical examination and that Defendant will have another opportunity to demand and exchange expert witnesses.  However, these are factors that are routinely present civil cases involving claims for personal injury and do not warrant denying a continuance request alone. 

Based on the foregoing, Defendant’s motion to reopen discovery and continue trial is granted.  The September 22, 2022 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse.  The September 8, 2022 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31.  All pre-trial dates, including all discovery and expert discovery dates, are to be calculated from the new trial date.

As to Defendant’s remaining requests for orders, including an order compelling Plaintiff to attend a defense medical examination, the requests are denied without prejudice.  In light of the Court’s ruling today, the parties are ordered to meet and confer regarding these issues within ten days to attempt to resolve them without judicial intervention.  Professional courtesy and cooperation are expected.  Defendant may file properly noticed motions seeking proper relief if necessary. 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 29^th day of August 2022