Judge Jill Feeney, Case 21STCV28554 2023-03-03 Tentative Ruling

On January 12, 2023, the Court granted Defendant’s ex parte motion to continue trial. Trial is now set for March 30, 2023. Fact discovery and motion cutoff dates remained based on the January 31, 2023 trial date. Expert discovery motion and cutoff dates were to comport with the trial date of March 30, 2023. Defendant was also ordered to file a motion for leave to conduct Plaintiff’s second IME if Plaintiff did not stipulate to the IME by January 17, 2023.

Defendant moves to reopen discovery on the grounds that Defendant is still seeking to depose (1) Plaintiff’s expert witnesses, (2) Plaintiff’s new damage witnesses, and (3) Plaintiff’s non-retained experts. Plaintiff is also seeking the reports of Plaintiff’s life care planner, Dr. Robert Contreras. Defendant also seeks to conduct a second IME of Plaintiff to evaluate his psychological injuries.

Plaintiff argues that the motion to reopen discovery with respect to the expert discovery is premature. Plaintiff also argues that a life care planner report does not exist. Plaintiff then argues that Defendant has not made a second expert designation based on the new trial date. Plaintiff also alleges that Defendant has known about Plaintiff’s non-retained experts since litigation began and failed to timely depose these experts. Defendant also received the identities of Plaintiff’s trial witnesses in November 2022 and waited until December 16, 2022 to notice the witnesses’ depositions, setting dates for after the discovery cutoff date. Defendant also waited eight months to notice Plaintiff’s IME without obtaining leave of court and setting the IME for a date after the discovery cutoff. Plaintiff finally argues that delaying trial further is prejudicial to Plaintiff, who has waited nearly two years for trial.

“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).)

“If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.) (Code Civ. Proc., section 2032.310, subd. (a).)

“A motion for an examination under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination.” (Code Civ. Proc., section 2032.310, subd. (b).)

“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown. . . . (d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.” (Id., § 2032.320, subds. (a), (d).)

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 seeks to reopen discovery to complete depositions of Plaintiff’s experts and damage witnesses and to obtain reports from Plaintiff’s life care planner. Defendant argues that Plaintiff’s opposition is untimely. Although the opposition was due on February 16 2023, the Court will consider Plaintiff’s opposition.

Defendant’s counsel testifies that on December 16, 2022, she attempted to communicate with Plaintiff regarding expert designations. (Motion to reopen, Russel Decl., ¶10.) Plaintiff had not produced reports from his recently retained life care planning expert. (Id.) Defendant also repeatedly inquired as to whether Plaintiff would agree to a second IME and asked why Plaintiff had not responded to the request. (Id.) Plaintiff’s counsel responded that he had intentionally not responded to the request and directed Defendant’s counsel to look at Plaintiff’s discovery responses. (Id.) Between December 2022 and January 2023, Plaintiff repeatedly refused to provide the reports of the life care planner and failed to produce dates for expert depositions. (Id., ¶¶11-14.) As of the date of the filing of this motion, Defendant is still seeking Plaintiff’s responses to her requests for identification and production of documents, to depose Plaintiff’s retained and non-retained experts, to depose Plaintiff’s damages witnesses, and reports from Dr. Robert Contreras. (Id., ¶¶15-28.)

The Court notes that expert discovery is still open and set to close on March 15, 2023. The parties must complete any remaining expert discovery, including depositions of retained and non-retained experts and production of any remaining expert reports.

Defendant also argues that she is still seeking to depose damages witnesses, Angel De Mey, Christian Lalonde, Gary Fledder, Emme De Mey, Lisa Lyons, and Vincent De Mey. (Motion to reopen, Russell Decl., ¶26.) Defendant also argues that she had not proceeded with discovery because she believed that Plaintiff was open to mediation. (Id., ¶8.)

Plaintiff argues that Defendant was not diligent in obtaining this discovery because she waited until October 2022 to serve interrogatories requesting the identities of Plaintiff’s trial witnesses. (Motion to reopen, Opp., p. 7.) Plaintiff then produced responses in November 2022 and subpoenas for those witnesses were issued in December 2022. (Id.) Additionally, depositions were noticed for a date after the original discovery cutoff date and on the same day as expert depositions.

The parties do not touch on the necessity of these depositions. Because these witnesses will testify as to Plaintiff’s damages, they are necessary for Defendant to prepare for trial. The parties dispute whether Defendant was diligent in pursuing discovery. The parties’ communications show that in June 2022, Plaintiff believed that the case needed to be tried. (Motion to reopen, Russel Decl., Exh. B, pdf p. 17.) However, later communications in August 2022 show the parties were still attempting to mediate. (Id., pdf p. 21.) Sometime before December 2022, Plaintiff refused to stipulate to a trial continuance because his preferred mediator did not have dates available for 2-4 months. (Id., pdf p. 20.)

Defendant proposes to conduct a second IME on March 22, 2023. The IME will be conducted by Dr. Manuel Saint Martin, a licensed psychiatrist. Defendant argues that Plaintiff has placed his psychological condition at issue by seeking damages for anxiety, depression, changes in mood, and erratic behavior.

Plaintiff argues that Defendant was not diligent in conducting discovery because Plaintiff agreed to a second IME in June 2022. (Motion for Leave IME, Soofer Decl., ¶¶6-7.) Defendant did not notice the second IME until December 2022 and set the IME for January 17, 2023, after the close of discovery. (Id., ¶8.) Plaintiff also argues that a second IME is unnecessary because Plaintiff already underwent a neurological examination with Dr. O’Carrol in December 2022. (Id., ¶19.)

Defendant’s second IME is necessary because Plaintiff is claiming damages for psychological injuries in addition to his neurological injuries. Plaintiff’s earlier neurological examination did not include his psychological injuries. There is good cause for Defendant to conduct a second IME of Plaintiff. Defendant’s counsel was not as diligent as counsel might have been in pursuing a second IME because she waited until December 2022 to notice the IME and set it for after the close of discovery. Nevertheless, a second IME of Plaintiff is necessary for Defendant to evaluate Plaintiff’s psychological injuries. Allowing Defendant to conduct a second IME before trial will not cause a significant delay in proceedings. Therefore, discovery will be reopened to allow Defendant to conduct a second IME of Plaintiff on March 22, 2023.