Judge Holly J. Fujie, Case 19STCV08863 2022-08-19 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

RESPONDING PARTY: Plaintiffs Raffaello Santi (“Mr. Santi”) and Serena Cenni-Santi (“Ms. Santi”) (collectively, “Plaintiffs”)

Plaintiffs initiated this action on March 14, 2019 alleging injuries sustained in an automobile accident that occurred on February 19, 2018 while Plaintiffs were receiving a ride from a driver using Lyft’s ride share mobile app. On December 21, 2020, Plaintiffs filed the currently operative first amended complaint (the “FAC”) alleging: (1) motor vehicle; (2) negligence; and (3) products liability.[1]

On July 28, 2022, Lyft filed a motion to continue the trial (the “Motion”) which seeks to have the trial in this matter continued from its currently scheduled start date of September 26, 2022 to June 26, 2023. Lyft seeks the continuance so that it may conduct the deposition of Dr. Claudia Gambetti (“Dr. Gambetti”), a doctor who treated Mr. Santi in Italy after the car accident.

Plaintiffs’ evidentiary objections to the evidence submitted with Lyft’s reply (the “Reply”) are OVERRULED. The Court exercises its discretion and has considered the Reply evidence, which provides an update on the status of Lyft’s efforts to compel Dr. Gambetti’s deposition in Italy. (Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241.)

California Rules of Court (“CRC”), rule 3.1332(a) provides that trial dates are firm to ensure prompt disposition of civil cases. (CRC, r. 3.1332(a).) Continuances are thus generally disfavored. (CRC, r. 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (CRC, r. 3.1332(c).) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (a) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (b) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Id.)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by 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 or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (CRC, r. 3.1332(d).)

In support of the Motion, Lyft indicates that Mr. Santi has asserted that he suffered a traumatic brain injury after he was in the car accident at issue in this litigation. (See Declaration of Ryan M. Sellers (“Sellers Decl.”) ¶ 5.) In February 2021, upon receiving Mr. Santi’s medical records from Italy, Lyft learned that Dr. Gambetti, a neuropsychologist, treated Mr. Santi in Italy after the car accident. (Id.) Dr. Gambetti performed many tests on Plaintiff and concluded that he did not suffer a traumatic brain injury. (Id.) Lyft thereafter noticed a Zoom deposition of Dr. Gambetti and issued a subpoena, which were provided to its counsel in Italy. (Id.) Lyft requested that its counsel in Italy ask Dr. Gambetti if she was willing to voluntarily appear for the deposition. (Id.) On September 17, 2021, Dr. Gambetti sent an email expressing her willingness to appear for her October 21, 2021 deposition. (Sellers Decl. ¶ 6.) On October 7, 2021, Dr. Gambetti sent another email stating that she no longer wanted to testify. (Id.)

On November 9, 2021, Lyft filed a Motion for a Letter Rogatory (the “Rogatory Motion”) in order to pursue Dr. Gambetti’s deposition. (Sellers Decl. ¶ 7.) The original hearing date for the Rogatory Motion was continued by the Court. The Court granted the Rogatory Motion on March 16, 2022. (Id.) Lyft’s counsel followed up with the Court several times to obtain a signed letter rogatory (the “Letter Rogatory”), which the Court issued on June 16, 2022. (Id.) Upon receiving the Letter Rogatory on June 16, 2022, Lyft’s counsel in Italy thereafter began preparing the paperwork to be filed with the Italian Court of Appeals. (See id.; Declaration of Roberto F. Lipari (“Lipari Decl.”) ¶ 19.) Lyft’s counsel in Italy contacted the Florence Court of Appeals to inquire about the timeline for its processing of the Letter Rogatory and accompanying paperwork and learned that the procedure would likely take between six and nine months, in part due to court closures during the summer. (Lipari Decl. ¶ 20.)

At the time Lyft filed the Motion on July 28, 2022, Lyft’s counsel in Italy was still waiting to receive apostilled power of attorney to authorize the filing of a motion to compel Dr. Gambetti’s deposition. (See Lipari Decl. ¶ 22.) On August 8, 2022, upon receipt of apostilled power of attorney, Lyft filed its motion to compel with the Court of Appeals of Florence. (See Supp. Lipari Decl. ¶¶ 14-32.) Lyft is currently waiting for the Court of Appeal to assign the case to a judge, which may take “more than a few weeks” due to the Italian court’s summer recess during the month of August. (Supp. Lipari Decl. ¶ 33.)

Lyft believes that Dr. Gambetti’s testimony and written reports are critical to its ability to defend itself against the damages sought in connection to Mr. Santi’s brain injury claim and that it would be prejudiced by being prevented from introducing the report she wrote after treating him. (See Sellers Decl. ¶ 13.)

The Court finds that the Motion satisfies the good cause requirement, as Lyft has demonstrated that its current request for a continuance is based on its inability to obtain essential evidence before the trial despite its diligent efforts. (CRC, r. 3.1332(c)(6).) The evidence offered in support of the Motion shows that Lyft has made continuous efforts to pursue Dr. Gambetti’s deposition from the time it first learned of her report in February 2021.

Plaintiffs’ opposition (the “Opposition”) does not dispute the evidence regarding Lyft’s efforts to depose Dr. Gambetti. The Opposition argues that there is a possibility that Dr. Gambetti’s deposition will still not be completed at the time of the proposed June 26, 2023 start date which may result in Lyft filing additional motions to continue the trial. Plantiffs base this argument on the advisement stated in the U.S. Department of Justice summary of process for letters rogatory that requests may take about a year to be completed. (See Declaration of Joseph H. Low IV (“Low Decl.”) ¶ 9, Exhibit 1.) Plaintiffs also argue that because the format and contents of Lyft’s Letter Rogatory differ from model Hague Convention letter and do not include procedural specifications recommended for Letters Rogatory submitted to Italian authorities, there is no guarantee that Plaintiffs will be able to obtain Dr. Gambetti’s deposition. (See Low Decl. ¶¶ 11-12, Exhibits 2-3.) Plaintiffs also note that the Italian authority does not grant pre-trial discovery of documents. (See Low Decl., Exhibit 2.) Plaintiffs contend that they will be greatly prejudiced by a trial continuance, although they do not specify how they will be prejudiced.

The Court finds that the interpretation of Italian laws in the execution of the requests stated in Lyft’s Letter Rogatory is a matter that is best left to the appropriate Italian tribunal. (See In re Baycol Products Litigation (348 F.Supp.2d 1058, 1061.)

Lyft filed a proposed revised Letter Rogatory which specifies that Lyft intends to proceed with an oral deposition should the Italian court decide to deny the production of documents, which it will file with the Italian court to supplement the currently filed Letter Rogatory.

While the Court is mindful of the lengthy pendency of this action, the Court finds that the prejudice that Lyft would face by being precluded from presenting evidence of Dr. Gambetti’s treatment and evaluation of Mr. Santi outweighs the prejudice Plaintiffs would face due to the delay of the trial. Lyft has demonstrated that the absence of Dr. Gambetti’s testimony would significantly impact its ability to defend itself against Plaintiffs’ claims for damages. Lyft has also demonstrated that it has continuously sought to depose Dr. Gambetti since it learned of the importance of her testimony to its case. Further, Lyft moved to continue the trial date once it communicated with the Italian court regarding the estimated time for processing the Letter Rogatory.

The Court therefore GRANTS the Motion. The current final status conference (“FSC”) and trial dates are VACATED. The FSC is continued to June 12, 2023 and the trial is continued to June 26, 2023. In the interest of expedience, the Court will also issue the supplemental Letter Rogatory submitted by Lyft so that Lyft may file it with the Italian Court of Appeals handling its case. The Court notes, however, that future delays or problems regarding Dr. Gambetti’s deposition may not be sufficient grounds for any further trial continuances.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the

Hon. Holly J. Fujie

Judge of the Superior Court

[1] On November 1, 2021, the Court granted Lyft’s motion for summary adjudication to the third cause of action.