Judge: Gregory Keosian, Case: 18STCV00492, Date: 2022-10-03 Tentative Ruling

Case Number: 18STCV00492    Hearing Date: October 3, 2022    Dept: 61

Defendant Barlow Respiratory Hospital’s Motion to Reopen Discovery is DENIED.

I.                   MOTION TO REOPEN DISCOVERY

The discovery cut-off date is 30 days before the original trial date, and the motion cut-off date is 15-days before the original trial date. (see Code Civ. Proc., § 2024.020, subd. (a).) “Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc., § 2024.020, subd. (b).)

A party may move to take discovery or have a discovery motion heard after the cut-off date, as follows:

(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.

(Code Civ. Proc., § 2024.050, subds. (a), (b).)

Defendant Barlow Respiratory Hospital (Defendant) moves to reopen discovery to allow a second deposition of Plaintiff with new document requests, a second deposition of her psychological expert witness Dr. Nina Rodd, and third-party discovery in the form of subpoenas on Plaintiff’s employers and medical providers, to allow an inquiry into a leave of absence for stress that Plaintiff took from Defendant’s employ earlier this year. (Motion at p. 2.)

The original trial date for this action was November 2, 2021, but in an order of October 25, 2021, trial was continued to May 2022, and fact discovery was cut-off, while expert discovery was extended. On May 4, 2022, trial was continued to its presently scheduled date of January 24, 2023.

Defendant argues that it has been informed that Plaintiff in February and March 2022 took a leave of absence from her continuing position at Defendant’s facility, reportedly because of stress and anxiety. (Turner Decl. ¶ 8.) When Defendant approached Plaintiff’s counsel about the matter, and proposed either stipulating to reopen discovery or to exclude additional claims or damages based on the leave, Plaintiff did not agree to stipulate. (Turner Decl. ¶ 10.) Defendant argues that it could not have brought this motion earlier, as their lead attorney on this case was on medical leave in the spring of 2022 to take care of family members. (Turner Decl. ¶ 9.) Defendant also argues that they are prepared to proceed with the subpoenas and deposition notices immediately, and that the January 2023 trial date will not need to be continued if discovery is reopened. (Turner Decl. ¶ 15.)

Plaintiff in opposition does not confirm whether this leave of absence occurred, and objects to the declaration of Defendant’s counsel concerning events relayed to him by Defendant as hearsay evidence. (Opposition at pp. 5–6.) Plaintiff argues that the motion is tardy, as Defendant could have brought it as soon as it obtained notice of the alleged leave. (Opposition at p. 4.) Plaintiff further argues she will not assert new and additional claims based on this leave, and that “[a]ny discovery concerning Plaintiff’s alleged leave of absence in 2022 would be irrelevant to the liability and damages claims in this . . . case.” (Opposition at pp. 3–4.) Plaintiff further argues that Defendant is being vague about the nature of its proposed discovery requests, which are likely to provoke disputes that could further delay the onset of trial. (Opposition at pp. 6–7.)

No re-opening of discovery is warranted here, as the proposed discovery is unnecessary. Defendant proposes to reopen discovery, and likely a number of discovery disputes, based on Plaintiff’s alleged leave of absence from her position with Defendant, but presents no evidence to suggest that such a leave has taken place, or that Plaintiff intends to use this instance of leave or the circumstances surrounding it to support her claims. Although Defendant contends in its motion that it needs further discovery “to defend against Plaintiff’s new claims and allegations,” Plaintiff in opposition expressly disaffirms any intent to use the alleged leave to support any new claims or allegations, and asserts that the leave is irrelevant to any of her claims for liability or damages. (Motion at p. 6; Opposition at pp. 3–4; Barrera Decl. ¶ 5.) Defendant has obtained the affirmations that it sought before bringing the motion, and there is no danger of these events being unfairly used against Defendant at trial.

There is a danger, however, of further delaying trial if discovery is reopened. This matter was filed almost four years ago, in October 2018, and trial has already been delayed more than once. Although Defendant asserts that needs only to conduct limited discovery, the mechanisms that it proposes are quite substantial, including second depositions of Plaintiff and Plaintiff’s expert, new subpoenas to Plaintiff’s medical providers and employers, and new document requests to be served upon Plaintiff. Although Defendant could perhaps conduct all of this discovery swiftly, it is doubtful, given the history of this case and prior discovery motions, that such expansive discovery would proceed without the emergence of disputes over its scope and manner. As such, granting the motion poses a reasonable likelihood of further trial delay in an already-delayed case.

Accordingly, the motion is DENIED.