Judge: Kerry Bensinger, Case: 20STCV03165, Date: 2023-02-06 Tentative Ruling

Case Number: 20STCV03165    Hearing Date: February 6, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On January 24, 2020, plaintiffs Agustin Hernandez, Alejandra Hernandez, Linda Hernandez, and Victor Hernandez (collectively, “Plaintiffs”) filed this wrongful death action against defendants John Hanassab (“Defendant”) and Enterprise Rent-A-Car Company of Los Angeles, LLC arising from the death of Maria Hernandez (“Decedent”) in a January 29, 2018 pedestrian-motor vehicle accident.

On December 22, 2022, the Court granted Plaintiffs’ Ex Parte Application to Continue Trial, but not to reopen discovery. The Jury Trial previously scheduled for 01/09/2023 was continued to 03/13/2023. At this hearing, the Court stated that “Discovery remains cut off. A motion to extend or reopen discovery must be filed as a noticed motion. CCP 2024.050.” (12/22/22 Minute Order.)

On January 9, 2023, Plaintiffs filed a motion to reopen expert discovery for the purpose of deposing Defendants expert witnesses. Defendant filed an opposition and Plaintiffs filed a reply.

II.          LEGAL STANDARD

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

Plaintiffs argue that discovery should be reopened to allow Plaintiff to depose Defendant’s expert witnesses, Dr. Brautbar and Jeff Suway. Plaintiffs argue that each factor mentioned in Code of Civil Procedure section 2024.050(b) weights in their favor.

A. Necessity and Reasons for Discovery

Plaintiffs argue that Dr. Brautbar’s deposition is necessary. Dr. Brautbar is a forensic toxicologist, who Defendant intends to call to prove that Decedent was at fault because she was allegedly intoxicated. Plaintiffs argue that they require Dr. Brautbar’s deposition to understand the basis and substance of his opinions, and whether his testimony is admissible.

Likewise, Plaintiffs argue that the Jeff Suway’s deposition is necessary. Suway is Defendant’s human factors expert, who Plaintiff expects will opine that Decedent should not have crossed the street, that her reaction time was impaired, and that the lighting prohibited Defendant from seeing. Plaintiffs argue that Suway’s deposition is essential to learn these opinions prior to trial.

Defendant does not dispute that these depositions are necessary to Plaintiff’s trial preparation. Thus, this factor weighs in favor of Plaintiff. 

B. Diligence

Plaintiffs argue that they have been diligent in attempting to depose these experts. Plaintiffs state that after the parties exchanged expert designations on October 12, 2022, Plaintiffs provided available dates for their retained experts and were able to schedule depositions with two of Defendant’s retained experts. (Dordick Decl. ¶¶ 2-4.) Plaintiffs state that Defense Counsel told Plaintiffs’ Counsel that the office would provide available deposition dates for Dr. Brautbar and Mr. Suway “as soon as possible.” (Dordick Decl. ¶ 5, Ex. 3.) Due to this, Plaintiff held off on noticing the depositions. (Dordick Decl. ¶ 6.) On October 25, 2022, Defense Counsel provided one available deposition date for Mr. Suway that did not work for Plaintiffs. (Dordick Decl. ¶ 6.) Plaintiffs state that Defense Counsel failed to provide other available dates, so on November 15, 2022, Plaintiffs served a Notice of Deposition for the experts, scheduled for November 29, 2022. (Dordick Decl. ¶ 7, Ex. 5.) However, on November 22, 2022, Defendant served objections stating that the depositions were untimely based on the then-existing December 1, 2022 trial date. (Dordick Decl. ¶ 8, Ex. 6.) 

In opposition, Defendant argues that Plaintiffs failed to diligently depose these experts. Defendant argues that Plaintiffs have a history of failing to pursue expert discovery, as Plaintiffs previously failed to depose Defendant’s experts for the July 2022 trial date, causing the trial to be continued. (Boden Decl. ¶¶ 6-7.) In addition, Defendant argues that Plaintiffs failed to timely notice the depositions prior to the December trial date, as they noticed the depositions the day before the close of expert discovery and scheduled the depositions the day before trial.

Although it is undisputed that Plaintiffs failed to notice the depositions of the two experts until after the discovery cut-off, Plaintiffs have put forward reasons that show their delay was not in bad faith, as they were waiting for Defendant to put forward available dates. The Court finds that this factor weighs neither against nor in favor of Plaintiffs motion.

C. Will Not Interfere with Trial Date

Plaintiffs state that these depositions will not interfere with the new trial date, as the depositions will take 3-5 hours and can be taken on a single day if necessary.

Defendant argues that he will suffer prejudice because the trial was already continued eight times due to Plaintiffs’ counsel’s lack of diligence. However, the Court finds that Plaintiffs taking of two depositions should not delay the scheduled trial date of March 13, 2023.

This factor thus weighs in favor of Plaintiffs.

D. Length of Time Between Old and New Trial Date

Plaintiffs argue that there is sufficient time for all parties to adequately prepare for trial. Plaintiffs argue that Defendant will gain an unfair advantage if Plaintiffs were not permitted to depose Defendant’s experts because it would allow Defendant to know all of Plaintiff’s retained expert opinions without Plaintiffs being on equal footing.

“’The opportunity to depose an expert during trial, particularly if the testimony relates to a central issue, often provides a wholly inadequate opportunity to understand the experts opinions and to prepare to meet it. [ ]. [T]he need for pretrial discovery is greater with respect to expert witnesses than it is for ordinary fact witnesses [because]…the other parties must prepare to cope with witnesses possessed of specialized knowledge in some scientific or technical field. They must gear up to cross-examine them effectively, and they must marshal the evidence to rebut their opinions.’” (Bond v. Roy (1999) 20 Cal.4th 140, 147.) 

The Court agrees that this factor weighs in favor of Plaintiff because Defendant has shown no prejudice, and Plaintiffs would be prejudiced if they were not permitted to depose these experts before trial.

Balancing the factors, the Court finds that deposing these expert witnesses is necessary for Plaintiffs’ trial preparation, that these two depositions should not interfere with the scheduled trial date, and that Defendant has not identified any prejudice that would result, so long as the trial date would not be continued again.

Thus, Plaintiffs’ Motion to Reopen Discovery for the purpose of deposing Defendant’s two expert witnesses is GRANTED.

IV.         CONCLUSION

Plaintiffs’ Motion to Reopen Discovery for the purpose of deposing Defendant’s two expert witnesses is GRANTED.

Moving party to give notice.

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.

Dated this 6^th day of February 2023