Judge Kerry Bensinger, Case Number: 20STCV05969, Date: 2023-08-07 Tentative Ruling

On February 18, 2020, Plaintiff, Florentine Hartanto, initiated this action against Defendants, City of Los Angeles (“City”) and the Consulate of the Republic of Indonesia (“Consulate”), for injuries arising from a trip and fall on an uneven sidewalk adjacent to the Consulate.

On June 21, 2022, City’s retained orthopedic medical expert, Dr. Richard Rosenberg, conducted Plaintiff’s independent medical examination (IME).

On October 4, 2022, the parties exchanged expert designations. Defendant named two orthopedic surgeons and indicated the second orthopedic surgeon had completed a file for this case. Trial was scheduled for February 10, 2023.

On October 6, 2022, Plaintiff noticed Dr. Rosenberg’s deposition for November 7, 2022.

On October 11, 2022, Dr. Rosenberg’s office indicated to City that Dr. Rosenberg was on medical leave until the end of November 2022.

On November 4, 2022, defense counsel objected to the November 7^th deposition because of Dr. Rosenberg’s unavailability.

On November 8, 2022, Plaintiff’s counsel filed a Notice of Unavailability. The Notice stated that Tnothy Mitchell would be unavailable from December 16, 2022, through January 3, 2023. And then in correspondence, Plaintiff indicated Mr. Mitchell was booked in January, had only one date available. Plaintiff’s counsel stated that Mr. Mitchell would “deal” with the issues when he returned on January 3, 2023.

On December 21, 2022, City served their second expert designation which named Dr. Rosenberg and a biomechanic expert.

On December 21 and 22, 2022, City stated in several emails that Dr. Rosenberg was ill but that he was available for deposition on the five following dates: January 6, 2023, January 20, 2023, January 27, 2023, January 30, 2023, and February 13, 2023. Plaintiff objected to the foregoing dates because counsel was unavailable on January 6 and January 20, and to the remaining dates because they were beyond the expert discovery cutoff or in the middle of trial, which was scheduled to begin on February 10, 2023.

On December 22, 2022, Plaintiff noticed Dr. Rosenberg’s deposition for January 26, 2023. On January 19, 2023, City served an objection, stating that Dr. Rosenberg was not available for deposition.

On January 26, 2023, Plaintiff took a certificate of non-appearance for Dr. Rosenberg.

On January 30, 2023, Plaintiff filed and served a motion in limine to exclude the testimony of both of defendant’s experts because defendant refused to make them available for deposition.

On February 10, 2023, trial was continued to July 14, 2023 because trial courtrooms were unavailable. All discovery remained closed.[1]

On April 28, 2023, Dr. Rosenberg notified City that he was retiring and would no longer be available for depositions or trials after June 30, 2023. Thereafter, City made Dr. Rosenberg available for remote deposition on May 25, 2023 and June 1, 2023. Plaintiff’s counsel rejected those dates because plaintiff’s counsel was unavailable due to trial in another case. City then reserved and noticed Dr. Rosenberg’s deposition for June 27, 2023, which Plaintiff’s counsel again rejected because he was starting another trial on that date.

Dr. Rosenberg was never deposed and is now unavailable for trial. On June 26, 2023, the Court granted in part City’s ex parte application to continue trial and reopen discovery. The Court granted a short trial continuance to August 21, 2023, and shortened time to hear this motion to continue the trial date and reopen discovery.

California Rules of Court, rule 3.1332, subdivision (b) outlines that “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.”

Under California Rules of Court, rule 3.1332, subd. (c), the Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. (Cal. Rules of Court, rule 3.1332, subd. (d).)

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).)¿¿

City’s orthopedic medical expert, Dr. Rosenberg, was never deposed and is now unavailable for trial. City now seeks to continue the trial date and reopen discovery so that City may (1) designate a new orthopedic expert and (2) conduct a second independent medical examination on Plaintiff. The parties argue over fault; whose fault is it Dr. Rosenberg was not deposed. Each argue the other was dilatory or obstructionist. Both are to blame.

By all accounts, City was prepared to go to trial on February 10, 2023 without Dr. Rosenberg having been deposed and, presumably, hoped the Court would allow Dr. Rosenberg’s testimony at trial and/or would order his immediate deposition prior to testifying. Plaintiff, on the other hand, rested on its motion in limine hoping the trial court would preclude Dr. Rosenberg’s testimony. Through no fault of either party, there were no trial court’s available on the assigned trial date. The parties agreed to continue the trial to July 14, 2023. Neither party raised any issues related to Dr. Rosenberg at the time of the continuance, presumably because Dr. Rosenberg had not yet announced his retirement. After the trial was continued, Plaintiff, in essence, refused to participate in Dr. Rosenberg’s deposition standing firm on the merits of her motion in limine. City tried to increase the likelihood of their calling Dr. Rosenberg at trial by setting his deposition. But to no avail because Plaintiff would not budge. City can no longer hope the Court will allow Dr. Rosenberg’s testimony at trial (as it did in February 2023) because Dr. Rosenberg is medically unavailable. Hence, this motion.

1) The necessity of and reason for discovery: City needs an expert. That is not in dispute. 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: Dr. Rosenberg’s medical condition and retirement through a wrench in both parties’ trial strategy. No doubt. City hoped to call Dr. Rosenberg at trial and Plaintiff sought to block his testimony. Neither side expected nor could anticipate not being sent out to trial on February 10, 2023. At that point, City did not know Dr. Rosenberg was not going to be available after June 30, 2023, although both parties knew Dr. Rosenberg was ill. Nonetheless, the parties stipulated to a July 14, 2023, In this interim (between February and June), Dr. Rosenberg could have been deposed but Plaintiff stood its ground. Unable to complete Dr. Rosenberg’s deposition, City filed this motion. All in all, this factor weighs slightly in City’s 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, expert deposition, and costs. Much like in the case of augmenting expert designations, the Court can mitigate the prejudice by ordering City to designate an expert immediately, pay for the costs associated with the new expert and depositions, and order a very short trial continuance to get the foregoing done. There is not much the Court can do to mitigate the inconvenience to the Plaintiff for another IME. However, if Plaintiff’s primary concern was to avoid another IME, Plaintiff could have deposed Dr. Rosenberg between February and June. True, City waited until May to start the effort to depose Dr. Rosenberg. Certainly, a strike against City in the diligence count. Nonetheless, Counsel chose the motion in limine/blockade litigation strategy over potential inconvenience of another IME should this motion be granted, which suggests the inconvenience of another orthopedic IME was/is not a primary factor in the analysis. All in all, this factor weighs slightly in Plaintiff’s favor, but the prejudice can be mitigated, as discussed below.

4) The Length Of Time Between The Prior Trial Date And The Date Presently Set: The delay is six months. While the Court is sensitive to Plaintiff’s age, a preference motion was not filed, and both parties agreed to a July trail continuance.

After balancing the factors and considering the equities, the Court is inclined to grant the motion, reopen discovery for the limited purpose of allowing City to designate a new orthopedic expert, permit another IME and deposition; all to be completed in two months. City will have to pay for costs associated with the new designation.

The Court will hear from the parties regarding Plaintiff’s alternative proposed Sanchez stipulation that might obviate some inconvenience to the Plaintiff, some costs, and some delays.

The motion to continue trial is GRANTED. The Jury Trial scheduled for August 21, 2023 is CONTINUED to October 30, 2023 at 08:30 a.m. in Department 27 of the Spring Street Courthouse. The Court sets the Final Status Conference for October 16, 2023 at 10:00 a.m. in Department 27 of the Spring Street Courthouse.

The motion to reopen discovery is GRANTED. Discovery is reopened solely to allow City to designate an orthopedic expert and discovery related thereto including an IME and deposition which must be completed no later than October 7, 2023. All other discovery cut-off dates remain closed.

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.

[1] On June 23, 2023, City filed an ex parte application to continue the trial and reopen discovery. The trial date was continued to August 21, 2023 to accommodate the hearing on this motion.