Judge: Kerry Bensinger, Case: 20STCV00992, Date: 2023-09-07 Tentative Ruling

Case Number: 20STCV00992    Hearing Date: September 7, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     September 7, 2023                 TRIAL DATE:  February 9, 2024

CASE:                                Carlos Chanchavac Tojin v. Best Buy Stores, L.P., et al.

CASE NO.:                 20STCV00992

MOTION TO REOPEN DISCOVERY

MOVING PARTY:                   Defendants Best Buy Stores, L.P., and Scott Stuart Crichton

RESPONDING PARTY:     Plaintiff Carlos Chanchavac Tojin

I.          BACKGROUND

            On January 8, 2020, Plaintiff, Carlos Chanchavac Tojin, initiated this action against Defendants, Best Buy Stores, L.P. (“Best Buy”), Wheels LT LSR, Geek Squad, Inc., and Scott Stuart Crichton (“Crichton”), for injuries arising from a motor vehicle versus bicyclist accident. 

            Relevant Procedural Background

·         The alleged accident occurs on March 30, 2019. 

·         Plaintiff filed the Complaint on January 8, 2020.  Trial was initially set for January 26, 2023. 

·         On March 10, 2020, Dr. Patel recommended surgery on Plaintiff’s right shoulder.

·         On February 15, 2021, Defendants deposed Plaintiff.  Plaintiff testified that he experiences pain in his right shoulder because of the accident.  Plaintiff also testified no doctor told him he needed surgery for his right shoulder.  Plaintiff identified his lower back only as the potential body part for future surgery.  

·         On October 19, 2022, the Court granted Defendants’ unopposed motion to continue trial.  Trial was continued to August 11, 2023.

·         On November 7, 2022, Defendants’ expert, Dr. Weinstein, conducted Plaintiff’s IME.  Dr. Weinstein noted that Dr. Patel recommended right shoulder surgery, but there is no record of right shoulder surgery.  Dr. Weinstein also noted that Plaintiff had full range of motion in his right shoulder. Dr Weinstein opined that Plaintiff does not need further treatment on his right shoulder.

·         In April of 2023, Plaintiff underwent surgery on his right shoulder.  Plaintiff attributes the injury to the accident. 

·         On June 27, 2023 Plaintiff served responses to Defendants’ supplemental written discovery, and disclosed his shoulder surgery for the first time.

·         On July 13, 2023, Defendants apply ex parte to continue the trial date.  The application is granted.  Trial is continued to February 9, 2024.  Discovery remains closed.  The Court specially sets a hearing on September 7, 2023 for Defendants’ motion to reopen discovery.  The Court encourages counsel to meet and confer to resolve the issues.  However, the parties are unable to resolve their issues.

            On August 8, 2023, Defendants filed this motion to reopen discovery for the limited purpose of ascertaining the extent of Plaintiff’s right shoulder injury and the basis for Plaintiff’s decision to have surgery.  To that end, Defendants wish to conduct another IME and deposition of Plaintiff.   Plaintiff opposes and Defendants reply.

II.           LEGAL STANDARD TO REOPEN DISCOVERY

            Except as otherwise provided, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.¿ (Code Civ. Proc., § 2024.020, subd. (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 demonstrating a good faith effort at informal resolution.¿ (Code Civ. Proc., § 2024.050, subd. (a).)¿¿¿¿¿¿¿ 

            The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (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, and (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).)¿¿ 

III.      DISCUSSION

Upon consideration of the relevant factors, the Court finds good cause exists to reopen discovery.

The Relevant Factors

1) The necessity of and reason for discovery:  Defendants need to ascertain the reasonableness and necessity of Plaintiff’s right shoulder injury.  Plaintiff claims he suffered the injury because of the incident.  A primary tenet of the judicial system is to try cases on the merits.  (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963.)  This factor weighs heavily in City’s favor.

2) Diligence or Lack of Diligence; Reasons Discovery Was Not Completed; Earlier Hearing for the Motion:  Plaintiff argues Defendants were not diligent in investigating Plaintiff’s right shoulder injury complaint.  In support, Plaintiff points to the IME report from Defendants’ expert, Dr. Weinstein, wherein Dr. Weinstein noted that Dr. Patel recommended right shoulder surgery.  Notably, however, Dr. Weinstein determined that Plaintiff had full range of motion in his right.  Moreover, Plaintiff testified at his deposition that his pain was located in his lower back only, not his right shoulder.  Despite the foregoing, Plaintiff went forward with surgery on his right shoulder in April of 2023, but did not disclose his surgery until June 27, 2023.  Given this background, Defendants were not sufficiently apprised of Plaintiff’s right shoulder injury and the concomitant need for surgery prior to the former trial date of August 11, 2023.  This factor weighs in Defendants’ favor. 

3) Likelihood Permitting Discovery Will Prevent The Case From Going To Trial; Interfere With The Trial Calendar; Result In Prejudice:  Granting the motion will result in a continuance.  And may prejudice Plaintiff in the sense that it may require another IME, depositions, and costs.   There is not much the Court can do to mitigate the inconvenience to the Plaintiff for another IME.  However, Plaintiff has placed the condition of his right shoulder at issue.  Defendants are entitled to prepare a defense for that claim.  This factors also weighs in Defendants’ favor.

4) The Length Of Time Between The Prior Trial Date And The Date Presently Set:  The parties do not discuss this factor.  The Court notes the delay is roughly six months.   

After balancing the factors and considering the equities, the Court is inclined to reopen discovery for the limited purpose of allowing Defendants to conduct another IME and deposition of Plaintiff and related expert discovery, and if necessary, to file motions to compel.

IV.       CONCLUSION 

The motion to reopen discovery is GRANTED.  Discovery is reopened for the limited purpose of allowing Defendants to ascertain the extent of Plaintiff’s right shoulder surgery.  This includes conducting Plaintiff’s IME and deposition and related expert discovery, and to allow for the filing of motions to compel should Plaintiff object to that discovery.  All other discovery cut-off dates remain closed.

Moving party to give notice. 

Dated:   September 7, 2023                                            ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  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.