Judge: Lee S. Arian, Case: 20STCV19525, Date: 2024-01-16 Tentative Ruling
Case Number: 20STCV19525 Hearing Date: January 16, 2024 Dept: 27
Tentative Ruling
Judge Lee Arian, Department 27
HEARING DATE: January
16, 2024 TRIAL DATE: February
9, 2024
CASE: Sylvia Ramirez v. Smart & Final, LLC
CASE NO.: 20STCV19525
PLAINTIFF’S MOTION TO REOPEN
DISCOVERY AND REQUEST FOR SANCTIONS
DEFENDANT’S MOTION TO REOPEN
DISCOVERY AND CONTINUE TRIAL 90 DAYS
MOVING PARTY: Plaintiff
Sylvia Ramirez
Defendant Smart & Final Stores, LLC
RESPONDING PARTY: Defendant Smart
& Final Stores, LLC
Plaintiff Sylvia Ramirez
I. INTRODUCTION
On May 20,
2020, plaintiff Sylvia Ramirez (“Plaintiff”) filed a Complaint against Smart
& Final Stores, LLC (“Defendant”) for injuries arising from a slip and fall
incident at defendant’s premises, alleging the causes of actions for premises
liability and negligence.
1.
Defendant’s
Motion (“DM”)
On September 28, 2023, Defendant filed a motion to reopen
discovery (“Defendant’s Motion” or “DM”) in light of recent developments in
Plaintiff’s medical condition and expenses, and Defendant’s discovery through its
insurance carrier that Plaintiff was involved in a vehicle collision after her
fall at the subject premises and before she received medical treatments she
alleges are related to her fall. Defendant requests a continuance of 90 days to
complete additional discovery.
Plaintiff filed an opposition on December 11, 2023 and
Defendant replied on January 8, 2024. The parties agree that the only
unresolved issue is whether Defendant should be allowed to have Plaintiff
attend two additional medical examinations, one by neurosurgeon Dr. Kaloostian
and the other by orthopedic knee surgeon Dr. Forman. Defendant argues that the
exams are necessary and proper in light of new information. Plaintiff argues
that Defendant’s request does not meet procedural requirements and lacks good
cause.
2.
Plaintiff’s
Motion (“PM”)
On October 5, 2022, Plaintiff filed a motion to compel
Defendant’s person most knowledgeable (“PMK”) to produce, among other things, documents
in response to Plaintiff’s requests for documents related to all slip and fall
incidents that occurred at the subject premises from January 1, 2014, to
present. In its March 28, 2023 order, the Court granted Plaintiff’s motion and
ordered sanctions against Defendant.
On November 27, 2023, Plaintiff filed her own motion to
reopen discovery (“Plaintiff’s Motion” or “PM”) seeking an order compelling
Defendant to produce for deposition the PMKs for all of the accidents that have
occurred at the subject store within 30 days of the date of the ruling on the
instant motion. Plaintiff also requests sanctions.
On December 8, 2023, Defendant filed a partial opposition
seeking to limit the reopening of discovery to accidents that have occurred at
the subject store before February 11, 2019, the date of Plaintiff’s fall.
Plaintiff replied on January 9, 2024.
II. LEGAL STANDARD
Code of Civil Procedure section 2024.050 provides:
(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 under Section
2016.040.
(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.
(4) The length of time that has elapsed between any date
previously set, and the date presently set, for the trial of the action.
(c)
The court shall impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010) against any party, person, or attorney who unsuccessfully
makes or opposes a motion to extend or to reopen discovery, unless it finds
that the one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
California Rules of Court, rule 3.1332, subdivision (c)
states that “[a]lthough continuances of trials are disfavored, each request for
a continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the
continuance.”
III. DISCUSSION
1.
Meet and
Confer
The meet
and confer requirement is met for both motions. (PM, 10; Agarwal Decl. Exh. I.;
Defendant’s Repl, 2:2-6.)
2.
Defendant’s
Motion
As a preliminary matter, the Court dismisses Plaintiff’s
argument in opposition that the Court has already ruled on a motion for a
second defense medical exam in its May 26, 2023 order (Plaintiff’s Opposition,
3:1-26) because new information has been uncovered, potentially necessitating a
second set of exams. The Court also dismisses Plaintiff’s argument in
opposition that Defendant has not complied with CCP sections 2032.320 and
2024.050. (Opposition to DM, 4:1-11; id. at 6:16-27.) While Defendant did
not specify a time and the diagnostic tests involved for the requested exams,
Defendant did provide the names of its experts, the availability of those
experts (DM, 8:17-22), grounds to support a second set of exams and the city in
which it proposes the exams should take place. Further, while Defendant did not
attach a meet and confer declaration, the pleadings from both sides clearly
show that the parties worked together and effectively addressed issues to the question
of medical exams. The Court is inclined to leniency because the original motion
sought several discovery items and Defendant has provided reasonably detailed
information in support of additional medical examinations and is therefore deemed
to have met procedural requirements.
In evaluating this motion, the Court considers the factors
in Code of Civil Procedure section 2024.050(b).
i.
Necessity
and reasons for discovery
Defendant contends that a second set of medical exams is
necessary in light of the following new information:
· Defendant’s discovery that Plaintiff was involved in a motor
vehicle accident that required hospitalization after her initial deposition;
· Plaintiff’s surgery to implant a spinal cord stimulator;
· A life care plan prepared by Plaintiff’s expert;
· The costs of Plaintiff’s at-home care according to
Plaintiff’s boyfriend’s testimony.
(Defendant’s Reply, 4:19-5:28.)
ii.
Diligence of
the moving party and the reasons that the discovery was not completed or that
the discovery motion was not heard earlier.
Plaintiff does not dispute that she did not disclose the
motor vehicle accident to Defendant. Defendant found out about the accident
through its insurance carrier by way of an ISO Claims Search. (DM, Ulwelling
Decl. ¶4.) The associated police report shows that, following the accident, Plaintiff
was transported to a local hospital due to pain to her spine and neck. (Id.;
Ulwelling Decl. Exh. B.)
iii.
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.
Trial is set for February 9, 2024. Permitting the discovery
motion is likely to delay the trial date.
iv.
The length
of time that has elapsed between any date previously set, and the date
presently set, for the trial of the action.
This matter was commenced on May 20, 2020 and has been set
for trial on the following dates:
· November 17, 2021
· April 21, 2022
· December 19, 2022
· July 7, 2023
· October 2, 2023
· February 9, 2024
While allowing this motion is likely to delay trial, the
Court finds such delay warranted, particularly in light of the discovery that
Plaintiff was involved in a car accident following her slip and fall incident
at Defendant’s store. The accident, which Plaintiff did not voluntarily
disclose, can be reasonably expected to affect a medical expert’s assessment of
Plaintiff’s condition. A medical expert would not ask the same questions to a
patient who fell and a patient who was involved in a car accident. Accordingly,
Defendant’s motion to reopen discovery is granted to allow Defendant to
complete additional medical examinations of Plaintiff with Dr. Forman and with Dr.
Kaloostian.
3.
Plaintiff’s
Motion
In
discovery, Defendant produced documents related to 16 slip and fall incidents
at the subject store, spanning September 2016 to August 2021. Out of these 16
incidents, seven occurred before Plaintiff’s injury. Whereas Plaintiff seeks to
depose the PMK for each of the 16 incidents, Defendant seeks to limit reopening
discovery to allow Plaintiff to depose only the PMK(s) for the seven incidents
that occurred before Plaintiff’s fall on February 11, 2019. The Court notes
that Defendant does not oppose Plaintiff’s deposition of the claimants
from the other incidents, including those that occurred after February
11, 2019.
v.
Necessity
and reasons for discovery
Plaintiff propounds that the deposition of the PMK for each
of the 16 incidents is necessary for the following reasons:
-
Show notice and foreseeability of
dangerous conditions;
-
Establish Defendant’s lack of due diligence
in keeping its facility safe and knowledge that its system is ineffective in
preventing/limiting accidents;
-
Impeach Smart & Final employees
who claimed no other falls occurred;
-
Bypass future evidentiary barriers
to introducing these other incidents into evidence; and
-
Because it is easier to depose an
employee and have them participate in trial than involving the injured parties
from the other incidents.
Defendant argues that each of these
objectives can be met by deposing the claimants in the other incidents, and/or
the PMKs for the incidents that occurred before Plaintiff’s fall. (Defendant’s
Opposition, 6:6-7:13.) Defendant opposes Plaintiff’s impeachment argument
because Defendant’s witness Alfred Ibarra was only produced as the PMK for slip
and fall incidents that occurred between February 11, 2018, and February 11,
2019. (See e.g., Opposition to PM, 4:17-5:6.)
vi.
Diligence of
the moving party and the reasons that the discovery was not completed or that
the discovery motion was not heard earlier.
Plaintiff
alleges that information about other incidents of slip and fall were discovered
during the deposition of Steve Polenske, the PMK for Plaintiff’s Request for
Production of Documents Nos. 12-17, which the Court compelled Defendant to
respond to in a March 28, 2023 order. Plaintiff alleges that the people
Defendant had previously produced for deposition claimed that there were no
other instances of people slipping and falling in the store. (PM, 3-4.)
Defendant does not object to Plaintiff’s characterization of how other
incidents of slip and fall were uncovered.
vii.
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.
Depending on the number of PMKs for the other incidents,
permitting further discovery may or may not change the trial date. For
instance, the PMK for several of the incidents could be the same Smart &
Final employee. The Court also notes Defendant’s motion to re-open discovery,
which the Court is inclined to grant, which would delay trial.
viii.
The length
of time that has elapsed between any date previously set, and the date
presently set, for the trial of the action.
As noted above, this matter was commenced on May 20, 2020
and has been set for trial on six separate dates, including the upcoming
February 9, 2024 date.
The Court finds Defendant’s counterarguments persuasive.
Plaintiff can establish notice and foreseeability of dangerous conditions at
Defendant’s subject store and show knowledge and lack of due diligence by
deposing the claimants of other incidents and the PMKs for incidents that
occurred prior to Plaintiff’s fall. Accordingly, Plaintiff’s motion to re-open
discovery is granted to allow Plaintiff to depose the PMKs of slip and fall
incidents that occurred prior to February 11, 2019.
4.
Monetary
Sanctions
Plaintiff
requests monetary sanctions against Defendant.
Since neither party “unsuccessfully” made or opposed Plaintiff’s motion
as required by Code of Civ. Proc. Section 2024.050, the request is DENIED. Defendant
does not request monetary sanctions against Plaintiff.
IV. CONCLUSION
Defendant’s
motion is GRANTED. Plaintiff is ordered to appear at medical examinations with
Dr. Forman and with Dr. Kaloostian, in Los Angeles, at a mutually agreed upon
date. Defendant is ordered to pay for Plaintiff’s reasonable costs of
attendance, including travel expenses.
Plaintiff’s motion is GRANTED for the limited purpose of
deposing the PMKs for the slip and fall incidents that occurred prior to
February 11, 2019. The request for sanctions is DENIED.
Trial is continued to May 9, 2024.
Dated: January 16,
2024 ___________________________________
Lee
S. Arian
Judge
of the Superior Court
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.