Judge Jill Feeney, Case 19STCV20008 2023-02-06 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

Fact discovery remains closed except for (1) the depositions of the fact witnesses who will be part of the schedule filed with the Court on or before 2/14/23; (2) the further limited deposition of Plaintiff (if agreed upon or ordered by the court); and (3) a second IME of Plaintiff (if agreed upon or ordered by the court).

The parties are ordered to file an agreed upon schedule for the completion of the depositions of all outstanding fact witnesses to include Plaintiff’s wife. This schedule must be filed on or before February 14, 2023. The Court sets a Status Conference Re: Schedule of Fact Witness Depositions for February 16, 2023 at 10:00 a.m.

This is an action for negligence arising from an incident where Plaintiff’s car fell into a large sinkhole in July 2018. Plaintiff Tony Maiden filed his Complaint against Defendants the City of Inglewood, the County of Los Angeles, and the California Department of Transportation on June 6, 2019.

On November 7, 2022, the Court granted Plaintiff’s Ex Parte Application to continue trial and denied Plaintiff’s Ex Parte Application for a Protective order pertaining to Defendant’s Untimely Noticed Depositions.

Defendant argues reopening discovery is appropriate because it requires more time to complete discovery on Plaintiff’s neurological, psychological, and earnings claims after learning of new developments in Plaintiff’s treatment. Plaintiff claims he will need 24-hour care and is now pursuing claims that he had previously waived.

Plaintiff argues that Defendant failed to show necessity and diligence as required to reopen discovery. Plaintiff also argues that Defendant was dilatory and unreasonable in noticing Plaintiff’s treating doctors’ depositions and delayed the depositions despite knowing their identities for years. Defendant also chose not to serve a demand for exchange of expert witnesses. Plaintiff also argues that Defendant failed to file a motion under Code Civ. Proc., sections 473 or 2034.710 seeking relief from its failure to designate experts.

Defendant argues that Plaintiff failed to disclose information regarding his treatment and deteriorating condition. Defendant reiterates arguments from its motion and argues that sanctions against Defendant are not warranted.

“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.” (Code Civ. Proc., § 2024.050, subd. (a).)

“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, subd. (b)(1)-(4).)

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2024.050, subd. (c).)

Pursuant to California Rules of Court, rule 3.1332, subdivision (a), “[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Under California Rules of Court, rule 3.1332, subdivision (b), “[a] party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

California Rules of Court, rule 3.1332, subdivision (c) states that “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.”

Defendant’s counsel testifies that the parties attempted to mediate and Defendant made the strategic decision not to make a demand for expert exchange. (Id., ¶9.) On the eve of mediation and after the expert exchange deadline had passed, Plaintiff served records of recent treatment Plaintiff had received that Defendant had not been aware of. (Id., ¶10.) On May 12, 2022, Plaintiff and his counsel confirmed on the record that Plaintiff waived all psychological based claims and was making only “garden variety” pain and suffering claims. (Id., ¶13.) On September 27, 2022, Plaintiff served responses to Defendant’s Special Interrogatories identifying psychological based injuries including traumatic brain damage, headaches, dizziness, cognitive issues, depression, anxiety, and post-traumatic stress disorder. (Id., ¶14.) On October 21, 2022, Plaintiff’s counsel stated he would produce Plaintiff’s Life Care Plan and Economics Analysis but then refused to do so. (Id., ¶16.)

On November 7, 2022, the Court considered Plaintiff’s ex parte application for a protective order which sought to strike Defendant’s late-filed deposition notices. The Court denied this motion on the grounds that Plaintiff failed to show irreparable harm and instead granted Plaintiff’s alternative request to continue trial and have the discovery dates comport with the original trial date of December 12, 2022. The parties would move forward with the depositions already noticed within the original discovery deadlines with additional time before trial to complete the depositions. On November 14, 2022, after discovery had closed, Plaintiff served new discovery identifying six new percipient witnesses and new documentation supporting loss of earning capacity. (Id., ¶12.) On November 30, 2022, Defendant sent a demand for a neurological IME and Plaintiff refused to attend. (Id., ¶17.) On December 29, 2022, Plaintiff’s daughter testified at deposition that her father could not play guitar at all and requires 24-hour care. (Id., ¶19.)

Defendant’s counsel also testifies that Plaintiff identified another witness they plan to call at trial on January 18, 2023. (Gandy Reply Decl., ¶3.) Additionally, Plaintiff has yet to produce Plaintiff’s wife, Mitchaelle Maiden, for deposition and cancelled previous attempts due to her health problems. (Id., ¶6.)

Defendant now moves to perform the following discovery: (1) make and expert demand and conduct expert discovery, (2) complete depositions of previously noticed and newly identified witnesses, (3) to conduct an additional IME of Plaintiff’s neurological condition, and (4) take a second volume of Plaintiff’s deposition narrowly tailored to the time from the date of Plaintiff’s May 2020 deposition to the present.

With respect to the request to conduct expert discovery, Defendant admits that it made a strategic decision not to make a demand for expert exchanges. Defendant argues that Plaintiff disclosed new medical treatment on October 13, 2022 and beyond that Defendant was not previously aware of. (Gandy Decl., ¶10, 11) Defendant contends essentially that after the cutoff date to make a demand for expert exchanges passed on October 3, 2022, Plaintiff made additional claims about his condition that changed Defendant’s view of the need for expert exchange. Specifically, Plaintiff produced additional treatment records, including treatment with a previously unidentified physician. Moreover, Plaintiff’s daughter testified in December about a significant change in Plaintiff’s condition, such that he now requires 24 hour care.

With respect to the depositions of previously noticed and newly identified witnesses, the Court previously granted Defendant leave to depose and subpoena documents from the six percipient witnesses identified in Plaintiff’s November 15, 2022 supplemental discovery response.

Defendant also requests to conduct a second IME and deposition, the evidence shows that Plaintiff’s medical condition has deteriorated significantly since his May 2020 deposition as evidenced by his daughter’s recent testimony that Plaintiff requires 24-hour care. A court may, upon a showing of good cause, grant a party leave to take a second deposition and a second IME. (Code Civ. Proc., sections 2025.610(b), 2032.430(a).)Here, Plaintiff was able to manage his daily activities in 2020 and now requires 24-hour care. There is good cause for a second IME and a second deposition for the limited purpose of determining the change in his medical condition.

Plaintiff argues that Defendant has all the information it needs about Plaintiff’s medical condition because it received regular medical reports from Plaintiff’s physician, Dr. Michael Weinstein, the most recent of which is dated November 17, 2022. However, the reports do not document a significant decline in Plaintiff’s medical condition. Because Plaintiff’s daughter testified that Plaintiff requires 24-hour care that is a significant change from Plaintiff’s medical condition in 2020, Defendant is entitled to perform its own discovery on Plaintiff’s medical condition.

Defendant discovered the significant change in Plaintiff’s medical condition after deposing Plaintiff’s daughter in December 2022. Although Plaintiff argues that Defendant has been on notice of Plaintiff’s care providers and his medical condition through medical reports written by Dr. Weinstein, those reports did not show a significant change to Plaintiff’s medical condition. Defendant thus did not have notice of the change to Plaintiff’s medical condition until December 2022.

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.

To allow Defendant to complete additional discovery, Defendant requests a continuance to May 2023. This factor weighs against reopening discovery, but not significantly as there will be no prejudice from the short delay.

This factor does not weigh strongly in favor or against reopening discovery. Trial was previously continued on November 7, 2022. This would be the fifth continuance in this action. However, Defendant’s requested continuance is brief and would place trial in May 2023.