Judge: John C. Gastelum, Case: 20-01137442, Date: 2023-01-09 Tentative Ruling
Motion -- Other
Tentative Ruling: Plaintiff Rafael Villalvazo (“Plaintiff”) moves for an order to re-open discovery so that Plaintiff may conduct additional depositions, as well as leave to submit a tardy expert witness designation.
Re-Opening Discovery
In exercising its discretion to grant or deny a motion, the Court should take into consideration any matter relevant to the leave requested, including the following factors:
(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(b).)
On the first factor, Plaintiff argues the deposition of Olga Suzuki, a former employee of Defendant Bodega Latina Corporation (“Defendant”), is necessary because she was the employee who was called to clean the area but was on a break at the time of the slip and fall. Plaintiff contends that whether Defendant had notice of the slippery condition is at issue because Defendant has claimed that Plaintiff fell shortly after a child had vomited and Defendant would not have had notice of any dangerous condition. Plaintiff also argues the deposition of individuals who have knowledge about the surveillance video is necessary given counsel’s recent discovery that the video had been manipulated.
Plaintiff does not explain how Ms. Suzuki’s testimony is necessary for his defense against any notice defense by Defendant. Even if Ms. Suzuki was the employee who was called to clean the floor before Plaintiff’s slip (a fact for which Plaintiff presents no evidence), it is unclear what pertinent testimony she could give regarding the incident. She was purportedly on a break at the time she was called so she did not witness the incident. Thus, the Court finds any testimony by Ms. Suzuki is not necessary in this matter.
Plaintiff also contends the depositions of Defendant’s employees with knowledge of the surveillance video are necessary because Plaintiff believes the video was manipulated or edited prior to production. Plaintiff’s counsel’s assertion that the surveillance video appears to have been manipulated is not persuasive. Counsel states that in early May 2022, he re-watched the surveillance video produced in discovery. (Declaration of Benjamin G. Berkley (“Berkley Decl.”), ¶ 17.) Upon re-review, counsel noticed that Plaintiff and his wife unnaturally appear on the screen when watching the video in reverse and another individual disappears from the frame when Plaintiff appears on the screen. (Id., ¶ 18.) Based on this discovery, counsel believes the video was manipulated. (Id., ¶ 20.) He has consulted with multiple consultants to confirm his suspicion. (Id., ¶ 21.) As Defendant points out, Plaintiff has not submitted any evidence from a video expert regarding the alleged manipulation, though Plaintiff contends several people have been consulted. This assertion is based solely on Plaintiff’s counsel’s contention that the video appears unnatural when viewed in reverse. Counsel does not state that anything about the video appears unnatural when the video is played in a normal manner. Without more, the Court cannot find that the depositions of employees with knowledge of the surveillance video are necessary here.
On the second factor, the Court finds that Plaintiff lacked diligence in completing the discovery sought. On September 9, 2020, Plaintiff served a Notice of Third Continuance of Taking Deposition seeking the deposition of Ms. Suzuki. (Berkley Decl., ¶ 5.) On September 30, 2020, Defendant served its Objection to Plaintiff’s Notice of Deposition and noted that Ms. Suzuki was on an extended leave of absence and could not be produced. (Id., ¶ 6.) Plaintiff was provided Ms. Suzuki’s contact information in September 2020 so that Plaintiff could subpoena her directly, but Plaintiff failed to do so. (Declaration of Rosemary Do, ¶¶ 7-8.) Plaintiff also never asked Defendant for any updates on her return from her medical leave. (Id., ¶ 8.) Plaintiff’s failure to make further attempts to depose Ms. Suzuki since September 2020 cannot be described as anything other than dilatory. Plaintiff also failed to act diligently as to the video, which was produced in July 2020. Counsel for Plaintiff states he did not notice any purported irregularities with the video until he re-watched it in May 2022, almost two years after it had been produced. Thus, the Court finds the second factor weighs in favor of denying the Motion.
The third and fourth factors are neutral. Trial is now set for January 9, 2023. Permitting the requested discovery will not likely prevent the case from going to trial on the date currently set. Defendant claims it will be prejudiced if the Motion is granted but being forced to incur additional discovery expenses is not an appropriate ground for a finding of prejudice. The prior trial date was May 16, 2022. The length of time that has elapsed between any date previously set, and the date presently set, for the trial is not insignificant. However, because it does not seem that the requested discovery would delay the current trial date, this would not be a reason to deny the Motion.
Taking into consideration the factors under section 2024.050(b), the Motion is DENIED. Plaintiff was dilatory in not taking steps to procure the desired discovery or investigate before the discovery cut-off, despite having all reasonable means to do so. This, in addition to the fact that Plaintiff has not demonstrated the discovery is necessary to his case, weigh in favor of denial.
Leave to Designate Experts
a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.
b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.
c) The court has determined that the moving party did all of the following:
(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.
(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.
(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.
d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.
(Code Civ. Proc., § 2034.720.)
Plaintiff seeks leave to submit an expert witness designation, contending the failure to timely serve a designation was due to mistake, inadvertence, and excusable neglect. Plaintiff argues Defendant will suffer no prejudice if leave to designate experts is granted because trial has been continued, giving Defendant ample time to depose the experts Plaintiff intends to designate.
Plaintiff’s counsel’s assistant’s custom and practice is to provide a draft expert designation for counsel’s review. (Berkley Decl., ¶ 10.) Her assistant, Bertha J. Ceron, timely provided a draft and counsel timely reviewed and signed off on it, instructing Ms. Ceron to serve the designation. (Id., ¶ 10.) Due to mistake, inadvertence, and/or excusable neglect, Ms. Ceron failed to serve the document. (Id., ¶ 12.) A declaration of counsel’s assistant confirms that she failed to serve the expert designation due to mistake, inadvertence, and excusable neglect. (Declaration of Bertha J. Ceron, ¶ 6.)
Under the first factor, Defendant has not argued it relied to its detriment on Plaintiff’s failure to timely designate experts. The Court finds that Defendant has not relied on the absence of Plaintiff’s list of expert witnesses such that the Motion should be denied.
For the second factor, Defendant argues it will suffer prejudice by having to incur costs in taking the depositions of the proposed experts, including the attorney time to prepare for said depositions. However, the question of prejudice requires consideration of whether Defendant will be prejudiced in maintaining its defense on the merits. (See Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1478-1479.) Defendant will suffer no prejudice in this regard. Moreover, Plaintiff’s counsel has offered to pay for the expert depositions. (Berkley Decl., ¶ 15.)
For the third factor, the Court finds that the evidence is sufficient to establish that Plaintiff failed to serve his designation due to some mistake or inadvertence on the part of Ms. Ceron and Mr. Berkley.
As to whether Plaintiff brought this Motion promptly, the initial designations were due on March 28, 2022. (Berkley Decl., ¶ 8.) Plaintiff’s counsel was advised of the failure to timely serve a designation on April 12, 2022. (Do Decl., ¶ 15, Ex. 3.) Defense counsel informed Plaintiff that Defendant would not stipulate to allow Plaintiff to belatedly designate experts on April 18, 2022, putting Plaintiff on notice that a motion for leave would be necessary. (Id., ¶ 21.) Plaintiff filed this Motion one month later, on May 19, 2022. Though Plaintiff perhaps could have filed his Motion earlier, it appears that Plaintiff was sufficiently prompt in seeking leave. Plaintiff served a copy of the proposed expert witness designation along with its Motion. Thus, the Court finds Plaintiff promptly served his proposed designation as well.
However, the Court also notes that Plaintiff’s counsel states that the copy as served does not reflect the complete list of experts Plaintiff seeks to designate. Plaintiff’s counsel states he is still in the process of agreeing to terms of expert retention with a consultant and intends to supplement Plaintiff’s designation once the terms are finalized. (Berkley Decl., ¶ 23.) Because the copy of Plaintiff’s proposed expert witness designation does not include this consultant, allowing this consultant to be designated by Plaintiff would violate 2034.720(c)(3). If the Court were to grant Plaintiff leave to further designate additional experts retained after hearing this Motion and not identified in the proposed expert witness designation already served, that would obscure the purpose of section 2034.720 to ensure that leave is only granted when an opposing party has not been prejudiced and the failure to timely designate was due to mistake, inadvertence, surprise, or excusable neglect.
Given the foregoing, the Motion for leave to submit a tardy expert witness designation is GRANTED, but only as to the proposed expert witness designation attached to the Motion as Exhibit 5, which contains a list of four retained experts. To the extent Plaintiff seeks leave to further augment his list with additional experts not identified in Exhibit 5, the Motion is DENIED.
Plaintiff to give notice.