Judge: Laura A. Seigle, Case: 21STCV26682, Date: 2024-02-28 Tentative Ruling

Case Number: 21STCV26682    Hearing Date: March 22, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION TO REOPEN DISCOVERY

On March 13, 2024, Plaintiffs Darren Hargrove and Kevin Hargrove filed an ex parte application to reopen expert discovery.  The court set the request for hearing on shortened time, and Defendant Valley Brake Supply filed an opposition. 

Plaintiffs state they served a letter on Monday March 4, 2024 offering two experts (Markowitz and Brody) for depositions on March 8 and two experts (Ellenbecker and Cohen) for depositions on March 18.  Defendant objected to the March 18 dates.  On March 5, Plaintiffs offered depositions on March 11.  Defendant objected.  On March 7, Plaintiffs offered the experts for depositions on March 13 and March 18.  Defendant objected.  On March 8, Plaintiffs offered a deposition on March 14.  Defendant objected.  According to Plaintiffs, the expert discovery cutoff date was Sunday, March 10, 2024.  Defendant objected that the offered dates were after the expert discovery cutoff date or did not provide the required five days’ notice per the CMO.  Trial is on March 25, 2024.

Code of Civil Procedure section 2024.050 states that a court may grant leave to complete discovery proceedings closer to the initial trial date or reopen discovery after considering (1) the necessity and reasons for the discovery, (2) the diligence or lack of diligence of the moving party and the reasons discovery was not timely completed, (3) likelihood that permitting the discovery will prevent the case from going to trial on the trial date, and (f) the length of time between any previously set trial date and the current trial date.

Plaintiffs argue that the depositions are necessary because the witnesses are Plaintiffs’ experts, it is difficult to set expert depositions because experts’ schedules are booked, and Plaintiffs were diligent and expected the defendants to meet and confer on dates rather then reject dates.  Defendant argues that allowing the depositions will prejudice it because it is preparing for trial, the depositions cannot be completed before the current trial date, and Plaintiffs were not diligent.

            Counsel should have picked up the phone and had a call to schedule all of the expert depositions in this case.  Sending a flurry of letters back and forth is not productive.  It merely sparks more letters.  Both sides knew many depositions would need to take place in a small window, and both sides failed to work together to schedule the expert depositions.  It is common in asbestos litigation for experts to have congested schedules, making setting depositions difficult.  Both sides should have taken that into account when working together to set an expert deposition schedule.  And Plaintiffs should not have waited until March 4, when only five court days remained until the expert discovery cutoff, to offer their experts for depositions.  In sum, both sides exhibited a lack of cooperation and professionalism in setting the expert deposition schedule.

It is unlikely this case will actually go out to trial on March 25, 2024, even if expert discovery had been timely completed.  The parties failed to file timely complete pre-trial documents.  And the court currently has few trial courts available for non-preference cases.  On February 8, 2023, the court set the March 25, 2024 trial date.  Trial has not previously been continued.

Having considered all of the factors, the court GRANTS the motion.  Trial is continued to April 29, 2024 at 9 a.m.  Expert discovery is reopened solely to complete expert depositions.  The moving party is to give notice.