Case Number: 21STCV05201    Hearing Date: April 26, 2023    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka                                                                                                                              Wednesday, April 26, 2023

Department B                                                                                                                                                                    Calendar No. 11

PROCEEDINGS

Liam Umer, et al. v. Newvac Lift, LLC, et al.

            21STCV05201

1.      RD Waldman Construction, Inc.’s Motion to Reopen Non-Expert Discovery     

TENTATIVE RULING

            RD Waldman Construction, Inc.’s Motion to Reopen Non-Expert Discovery is denied.

Background

Plaintiffs filed the Complaint on February 9, 2021. Plaintiffs allege the following facts. Plaintiffs were on the premises located at 441 23rd Street, Manhattan Beach, CA 90266. Plaintiff Liam Umer, a minor, was using an elevator installed by Defendants RD Waldman Construction, Inc. Plaintiff Liam Umer’s left arm was caught on the metal framing of the PVE vacuum elevator causing him to suffer injuries to his left arm and hand.

Motion to Reopen Discovery

Code Civ. Proc., § 2024.050 states, in relevant part:

“(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.”

Meet and Confer

Defendant set forth a meet and confer declaration in sufficient compliance with CCP § 2024.050 and CCP § 2016.040.  (Decl., Mayra J. Marin, ¶¶ 8.)

Motion to Reopen Discovery

Defendant moves for an order granting leave to reopen discovery.  Defendant seeks to reopen discovery to identify Plaintiff Shan Umer’s mother-in-law, take her deposition, and to obtain documents from the mother-in-law. The motion is based on the ground that the requested discovery is necessary because the mother-in-law has relevant information not previously disclosed.

Necessity and Reasons for Discovery

Defendant argues that the identified discovery noted above is needed as it is critical to Defendant’s defense. However, Defendant fails to adequately explain what information Defendant seeks to gain from a deposition and production of documents from Shan Umer’s mother-in-law, and why this would be critical to the defense. Defendant apparently bases this request on a purported anonymous phone call but fails to explain what facts were obtained in the phone call, and also why it would have any reason to believe that the caller had any relevant first-hand knowledge regarding the mother-in-law, let alone the general facts of this case. Thus, Defendant fails to demonstrate the requisite necessity and reasons for this discovery.

The Court notes that, for the first time, with the Reply, Defendant now claims that the mother-in-law may have been a witness to the incident. This argument was not presented with the original motion. In addition, Defendant filed a new declaration with the Reply which provided more clarity as to what new information was allegedly presented by this anonymous caller. It is unclear why all these facts were not set forth in the original motion which only vaguely stated that the mother-in-law may have “relevant information.”  The Court determines that this new evidence with the Reply was not properly presented with the original motion and did not give Plaintiff the opportunity to adequately respond.

Diligence

The second factor focuses on “[t]he 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.”  Here, Defendant has failed to set forth sufficient facts to adequately established diligence.  Defendant did not provide any evidence whatsoever to show that it acted diligently in pursuing discovery. Instead, Defendant actually admits lack of diligence by stating that prior counsel failed to complete this discovery and also should not have agreed to not extend non-expert discovery. The diligence component attaches to the party and not the attorney. Simply because a new attorney was substituted into this case does not absolve the lack of diligence of the party up to that point.

Again, new information was submitted with the Reply which attempted to explain why prior counsel may not have been able to obtain this information earlier.  However, as noted above, this new evidence, only submitted with the Reply, failed to provide Plaintiff the opportunity to respond.  

Trial Date/Prejudice

As to the third factor, the Court notes that the trial date is now November 28, 2023. The Court finds that reopening discovery will probably not require another trial continuance.   

Prior Trial Dates

As to the fourth factor, there have been several continuances of the trial date, which was initially set for August 9, 2022.   

Based on a full evaluation of all the factors noted above, the Court finds that Defendant has not established good cause to reopen discovery.  As noted above, Defendant failed to establish the necessity and reasons for this discovery and failed to establish the essential factor of diligence. Thus, Defendant’s Motion to Reopen Discovery is denied.

Sanctions

Pursuant to CCP § 2024.050(c), sanctions are requested by Plaintiff against Defendant R.D. Waldman and their counsel of record, Lewis Brisbois Bisgaard & Smith, in the total amount of $1,750.00.  Prior to the filing of the Reply, the Court was inclined to award sanctions.  However, the Reply did provide sufficient information that would, at a minimum, warrant the denial of the request for sanctions.

Thus, the request for monetary sanctions is denied.

Plaintiff is ordered to give notice of this ruling.