Judge Kerry Bensinger, Case Number: 20STCV41794, Date: 2023-09-13 Tentative Ruling

On December 2, 2020, Plaintiff, DeeAnna Linsmaier, initiated this action against Defendants, Wail Bushara (“Defendant”) and Mercury Insurance Company, for injuries arising from a motor vehicle accident. Defendant was the driver of the vehicle in which Plaintiff was a passenger. Defendant and Plaintiff were work colleagues and working in the scope of their employment at the time of the incident. Plaintiff is currently self-represented.

On August 4, 2023, Plaintiff filed a motion to reopen discovery. The motion was scheduled to be heard on September 28, 2023. Plaintiff also reserved a hearing date of September 27, 2023 for a motion to continue trial.

On August 10, 2023, Plaintiff filed an ex parte application to continue the trial to a date past May 15, 2024 due to a medical emergency. The Court heard the application on August 11 and August 15. After hearing from the parties, the Court consolidated Plaintiff’s motion to continue the trial date and to reopen discovery. Defendant opposes and Plaintiff replies.

The Court notes Plaintiff has filed two motions to continue the trial date: a Motion to Continue the Trial to a Date Past May 15, 2024 and a Motion to Continue for Medical Reasons. The Court considers these motions together.

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).)¿¿

Plaintiff seeks to continue the trial date past May 15, 2024 because she suffered a serious ankle injury which requires treatment with medications that render Plaintiff unable to seek new counsel or prepare for trial. In support, Plaintiff offers a letter from her medical doctor, Seth Herman, M.D., who opines that Plaintiff has been sedated, incapacitated, and not sufficient cognizant to take on the task of finding a new attorney or preparing for trial due to treatment for ankle fractures and subsequent medical issues. (8/23/23, Plaintiff’s Motion to Continue Trial To a Date Past May 15, 2024 Due to Medical Reasons, Ex. A.)[1] Dr. Herman further opines Plaintiff will not be able to prepare for or participate in trial until at least January 2024. (Id.) Based on the foregoing, the Court agrees good cause exists to continue the trial date. Although Bushara submits compelling arguments against a fifth trial continuance, including Plaintiff’s apparent ability to file several ex parte applications, these motions, and several other discovery motions yet to be heard, the Court does not view Plaintiff’s ability to move for a trial continuance and reopen discovery as indicative of her ability to prosecute this case and participate at trial with the same vigor. The doctor’s diagnosis provides good cause to continue the trial to at least January 2024.[2] The Court will be reluctant to grant further continuances past the January date.

Plaintiff seeks to reopen discovery because essential discovery has not been completed, which includes obtaining or conducting the following: Plaintiff’s employment contract from former employer, Defendant’s deposition, documents relating to vehicle damage, and Defendant’s responses to written discovery. After consideration of the relevant factors, the Court finds good cause does not exist to reopen discovery.

1) The necessity of and reason for discovery: Plaintiff argues the foregoing discovery is necessary to prepare her case for trial. The Court is not persuaded. Plaintiff argues the employment contract is essential to prove her loss of earnings claim. However, Plaintiff already subpoenaed her former employer to produce documents, including the employment contract. Plaintiff’s employer has already produced all responsive documents in its possession; they maintain, after a diligent search and inquiry, an employment contract with Plaintiff is not in their possession. Despite this representation, Plaintiff maintains her employer possesses the employment contract and has filed a motion to compel its production. Curiously, Plaintiff does not explain why she does not possess her own employment contract. Plaintiff has detailed her diligent efforts to obtain this document. There is no good cause to reopen discovery to replough the same field.

As to Defendant’s deposition, Defendant has already admitted liability. It is unclear as to why Plaintiff would need to depose Defendant given liability is not at issue. For this same reason, the Court is not persuaded discovery should be reopened to allow Plaintiff to obtain documents related to vehicle damage. Plaintiff argues the documents are critical to prove liability. However, as discussed, liability is not in dispute.[3] Nor does Plaintiff’s purported need for Defendant’s written discovery responses constitute good cause. For example, Plaintiff seeks Defendant’s responses to Requests for Admission yet fails to mention they have already been deemed admitted against Defendant. As to interrogatories, Defendant has provided responses. If Plaintiff took issue with those responses, her only recourse was to compel a further response. Plaintiff did not do so.

2) Diligence or Lack of Diligence; Reasons Discovery Was Not Completed; Earlier Hearing for the Motion: The parties agree Plaintiff has diligently pursued discovery. However, given the Court’s disposition of the first factor, and the parties previously declared ready for trial, the Court finds this factor weighs in Defendant’s favor.

3) Likelihood Permitting Discovery Will Prevent The Case From Going To Trial; Interfere With The Trial Calendar; Result In Prejudice: As mentioned above, this case was previously called for trial. The parties declared themselves ready to proceed. Plaintiff does not present any argument to show good cause exists to reopen discovery given the parties’ prior readiness to try the case.

After balancing the factors and considering the equities, the Court finds good cause exists to continue the trial date because of Plaintiff’s injury and treatment. Good cause, however, does not exist to reopen discovery.

The motion to continue trial is GRANTED. The Jury Trial scheduled for October 5, 2023 is CONTINUED to February 9, 2024 at 08:30 a.m. in Department 27 of the Spring Street Courthouse. The Final Status Conference scheduled for September 21, 2023 is CONTINUED to January 26, 2024 at 10:00 a.m. in Department 27 of the Spring Street Courthouse.

The motion to reopen discovery is DENIED. All discovery, except expert discovery, remains closed. Expert discovery cut-offs remain set to the prior trial date of October 5, 2023.

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] Defendant argues the Court should not accept the veracity of Dr. Herman’s letter because it does not contain a letterhead nor is signed under penalty of perjury. However, the letter bears Dr. Herman’s signature. Absent any evidence showing the letter is a sham, the Court accepts Dr. Herman’s letter.

[2] For this reason, the Court intends to continue the trial to the first available date in or after January of 2024. Plaintiff does not show good cause exists to continue the trial date beyond the time necessary to recover from her medical condition. However, Defendant Bushara raises the possibility of surgeries of his own in early 2024. The Court will similarly accommodate Defendant Bushara’s medical requests. The Court will hear from the parties regarding the appropriate trial date in the Spring of 2024.

[3] Plaintiff also references the need to obtain the identity of a witness who viewed the car accident through video surveillance. Plaintiff bases this assertion on Defendant’s motion in limine No. 10. However, that motion in limine is devoid of any reference to a video surveillance camera or a witness to the car accident. The source of Plaintiff’s assertion is unclear.