Judge: Laura A. Seigle, Case: 22STCV10623, Date: 2024-01-31 Tentative Ruling

Case Number: 22STCV10623    Hearing Date: February 7, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION TO COMPEL

            On January 23, 2024, the court set an expedited briefing schedule for Defendant American Biltrite Inc. to file a motion to compel testing of a tissue sample by January 25, 2024, and Plaintiffs Judy Ann Golby and Raymond Golby to file an opposition by January 29, 2024, with a hearing on January 31, 2024.  Plaintiffs complained that Defendant served the motion at 8:17 pm instead of by 5:00 pm, and thereby did not give Plaintiffs enough time to file an opposition.  The court continued the hearing to February 7, 2024, giving Plaintiffs five more days for their opposition.  Plaintiffs filed an opposition on February 5, 2024.

            On May 10, 2023, Defendant requested Judy Ann Golby’s pathology materials.  (Jenkins Decl., ¶ 2.)  It appears that after that date, nothing happened for months.  On October 25 and 17, 2023, Defendant stated it wanted to test the pathology.  (Jenkins Decl., Exs. C, E.)  On October 27, 2023, Plaintiffs sent Defendant a stipulation to obtain the pathology materials from the facility where they were being held.  (Id., Ex. F.)  Between November 7 and 20, 2023, counsel met and conferred about revising the stipulation to allow certain testing of the pathology.  (Id., Exs. G, H, I, J.)  Defendant signed the stipulation on December 4, 2023.  (Renken Decl., ¶ 6.)  On December 26, 2023, Defendant served a subpoena on the facility for the pathology material and served a notice of intent to conduct destructive testing on January 8, 2024.  (Renken Decl., ¶ 7.) 

            Defendant contends that Plaintiffs now do not agree that Defendant can conduct the testing of the pathology, even though the parties signed the stipulation allowing the testing.  (Motion at p. 3.)  Defendant seeks an order allowing the testing pursuant to the December 4, 2023 stipulation.

            Plaintiffs argue that it is too late for any testing because discovery is closed and trial is on February 20, 2024, and Defendant waited too long.  Plaintiffs argue they will be prejudiced because if Defendant can perform the testing, then Plaintiffs’ experts will need to do additional work, and it is too close to trial.

            The parties’ signed stipulation states, “Tissue digestion is allowed only as long as defendants comply with General Order 28.”  (Jenkins Decl., Ex. K at p. 2.)  Plaintiffs do not argue that Defendant failed to comply with the order.  Plaintiffs’ argument is merely that it is too late for testing.  It is unclear why the testing did not go forward in January 2024, after Defendant obtained the pathology material and before the discovery cutoff date.  Instead, the parties have now spent weeks quibbling over testing that they had previously agreed to.

            Under Code of Civil Procedure section 2024.050, the court can reopen discovery after considering various matters.  The February 20, 2024 trial date is no obstacle here.  This is not a preference case, and it is very unlikely this case will be sent to trial on February 20, 2024 in any event.  There are four other cases set for trial that date, including one case where the trial date has been continued already because of lack of trial courts.  In addition, there are three cases set for trial on February 13, and it is extremely unlikely they will all be sent out to trial courts.  It is very likely that at least one or two of the February 13 cases will have their trial date continued to February 20.  The most likely scenario is that on February 20, this case will get in line behind at least two or three other cases waiting for an available trial court.

            Defendant has shown a reason to do the testing related to Golby’s alleged exposure to asbestos.  Plaintiffs cannot contend they are prejudiced by the testing – they already agreed in the stipulation that Defendant could do it.  While Defendant could have acted more expeditiously in getting the testing done, it acted with enough time to complete it before the original cutoff date if Plaintiffs had not thrown up objections.

            The motion is GRANTED.  Defendant may perform the testing pursuant to the December 4, 2023 stipulation.  The trial is continued to April 22, 2024 at 9 a.m. to allow the testing and expert discovery related to the testing  The final status conference is continued to April 8, 2024 at 9 a.m.  No other dates are continued except for the discovery cutoff dates concerning fact and expert discovery related to the tissue testing.

            The moving party is to give notice.