Judge Kerry Bensinger, Case 20STCV35012 2023-02-23 Tentative Ruling

On September 14, 2020, plaintiff Kendra Denise Brown (“Plaintiff”) filed this instant action. On November 2, 2020, Plaintiff filed a First Amended Complaint (“FAC”) against defendants Akop Kvryan, Ashkhen Kvryan, and Gevork Kvryan (“Defendants”) for personal injuries and property damage. Trial is currently set for March 23, 2023.

On January 26, 2023, defendant Gevork Kvryan (“Defendant”) filed this instant motion to continue trial and reopen discovery deadlines.

On February 2, 2023, Plaintiff filed an opposition which consisted only of a Declaration by Plaintiff’s Counsel, wherein Counsel did not oppose continuance of the trial date but opposed reopening discovery.

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, Rule 3.1332, subd. (a).) Continuances are thus generally disfavored. (Id., Rule 3.1332, subd. (b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, Rule 3.1332, subd. (c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. (Cal. Rules of Court, Rule 3.1332, subd. (c).)

The Court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court., Rule 3.1332, subd. (d).)

“On motion of any party, the [C]ourt 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 [Code of Civil Procedure] 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, 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).)

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(a).) “[A] continuance or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to CCP section 2024.050. (Code Civ. Proc., § 2024.020(b); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.) CCP section 2024.050 provides that “[o]n 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.” (Code Civ. Proc., § 2024.050(a).)

“The purpose of imposing a time limit on discovery is to expedite and facilitate trial preparation and to prevent delay.¿ Without a cutoff date, the parties could tie up each other and the trial court in discovery and discovery disputes right up to the eve of trial or beyond. Furthermore, . . . to be effective the cutoff date must be firm or some litigants will manipulate the proceedings to avoid the cut-off date.”¿ (Beverly Hosp. v. Superior Court¿(1993) 19 Cal.App.4th 1289, 1295.) The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿ (Code Civ. Proc., § 2024.050(a), (b).)¿ In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including:¿

(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.¿

A motion to reopen discovery pursuant to CCP section 2024.050 must be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution. (Code Civ. Proc., § 2024.050(a).)

The request to continue the trial date is unopposed. Good cause has been shown based upon the need to hear Defendant’s motion to augment the expert designation and conduct an IME of Plaintiff. Defendant also claims a continuance is required because Defendant’s expert is not available to testify at the current trial date.

Defendant claims to have retained expert Steven Nagelberg, M.D. to perform an orthopedic IME of Plaintiff, review records, and offer rebuttal expert testimony, but he first needs leave of court to augment the prior expert information so that Dr. Nagelberg’s testimony may be admitted at trial. As to reopening discovery, Defendant contends that an extension of deadlines to complete discovery and make discovery-related motions is necessary for the court to resolve pending discovery disputes and for the parties to complete discovery. Defendant also claims that he did not reasonably anticipate that discovery would be closed prior to the current trial date.

Defendant states that in November 2022, the Court granted Plaintiff’s ex parte application for a continuance of trial. Defendant contends that he did not oppose the request or the ex parte application because he believed that all discovery deadlines would be automatically moved along with trial, which would have allowed him to schedule an IME and other pre-trial discovery. Defendant explains that he did not know that discovery deadlines were closed because Plaintiff’s counsel did not serve a notice of ruling.

In opposition, Plaintiff’s counsel declares that a reopening of discovery is unnecessary because Plaintiff is no longer claiming any “residuals” which obviates the need for Defendant’s IME.[1] Additionally, Plaintiff’s counsel states that if Defendant wanted a defense medical examination, they could have scheduled the IME in advance since the incident occurred on November 27, 2019, or at least following Plaintiff’s deposition on March 25, 2021, where at that time she was claiming residuals. Plaintiff’s counsel contends that she understood Defendant did not need an IME in light of the fact that Plaintiff’s medicals are reasonable and necessary, and Plaintiff made a good witness. Plaintiff’s counsel states that this motion is a last-minute request and implies that there are no grounds to grant it.

In reply, Defendant argues discovery must be reopened so that the Court can hear and decide Defendant’s motion for leave to augment its expert information. Defendant contends an IME is necessary because Plaintiff has claimed ongoing physical ailments related to the accident in response to Form Interrogatory 6.3 and has not claimed to have completely recovered. (Reply, Decl. Sharifi ¶ 3, Exh. A.) However, Defendant argues that even if Plaintiff no longer seeks damages for those ongoing conditions, Defendant is still entitled to the examination because “one party, by conceding some matters, cannot unilaterally close the door to all discovery concerning that concession.” (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 174.)

The Court need not reopen discovery to hear Defendant’s motions for leave to conduct an IME and augment his expert witness list. Defendant does not cite any basis, for example, to reopen written discovery or take further depositions. The request to reopen discovery is denied. Should Defendant’s motions for (1) leave to augment his expert witness list and (2) to compel Plaintiff to attend an IME be granted, the parties may seek leave to reopen discovery accordingly.

Finally, the Court determines that Defendant sufficiently complied with the meet and confer requirements on the issue of reopening discovery and allowing the designation of Dr. Nagelberg as an IME doctor. (Mot., Sharifi Decl. ¶ 16.) Defendant’s counsel claims that Plaintiff’s counsel did not respond as of the date of filing the instant motion. (Id. at ¶ 17.)

In light of the foregoing, the Court GRANTS Defendant’s motion to continue the trial date to __________________. The FSC is continued to _____________________.

Defendant’s request to reopen discovery is DENIED without prejudice. The parties may revisit the issue of discovery after the Court rules on Defendant’s motion to augment its expert list and to compel Plaintiff’s IME.

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.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] For Plaintiff to prevail on its argument that an IME is unnecessary because she is no longer claiming “residuals,” Plaintiff will need to explain more specifically what damages are being sought and why an IME is no longer necessary to evaluate the claimed injuries and damages. That argument, however, is left for another day, namely the July hearing on Defendant’s motions to augment and compel an IME.