Judge Lee S. Arian, Case Number: 20STCV34715, Date: 2023-12-12 Tentative Ruling

On September 11, 2020, Plaintiff Holly McKay (“Plaintiff”) filed this action against Defendants Samuel Nicholas Wechsler (“Defendant”) and Does 1 to 50, for motor vehicle liability.

On November 16, 2023, Defendant filed the instant motion to reopen discovery for the limited purpose of completing expert depositions. Specifically, Defendant seeks to complete the remaining expert depositions by Plaintiff.

On November 28, the Court granted Defendant’s Ex Parte Application, resulting in the trial being continued to its current date of February 2, 2023.

“[A]ny 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 the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).)

“Except as provided in the Code of Civil Procedure § 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc., § 2024.020, subd. (b).)

Code Civil Procedure section 2024.050 subdivision (a) provides, in part, 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. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

In assessing a motion brought under the Code of Civil Procedure section 2024.050 subdivision (a), the court “shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (1) [t]he necessity and the reasons for discovery[;] (2) [t]he 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) [a]ny 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) [t]he 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).) Good cause must be shown to reopen discovery. (Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1293.)

“The court shall impose monetary sanction … 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.” (Code Civ. Procs., § 2024.050, subd. (c).)

“In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

Defendant’s counsel and Plaintiff’s counsel engaged in email and telephone discussions regarding the issue of scheduling the deposition of the remaining experts before the discovery cutoff date. Defendant’s counsel states that she has made a good-faith attempt to meet and confer. (Mot. page 6.) Plaintiff's counsel also acknowledged that a lengthy meet and confer session occurred on the morning of November 15, 2023. (Burtchaell Decl., Exh. “3.”) On this basis, despite Plaintiff’s counsel’s position that a sufficient meet and confer did not take place, the Court finds that the meet and confer requirement has been met.

The motion to reopen and the opposition to it appears to be a battle in gamesmanship. The Court is dismayed at the number of continuances that have occurred in this case, and the apparent delay in doing necessary discovery. But, while Plaintiff’s counsel fully blames Defense counsel, the Court finds the following facts to be significant in deciding this motion: the most recent expert designation was October 18, 2023, and at least since that time, Defense counsel appears to have been making reasonable efforts to complete discovery. Accordingly, and because there should be no prejudice and no need to change the trial date, the Court will reopen discovery for the limited purpose of completing expert depositions.

Defendant’s motion to reopen discovery for the limited purpose of completing expert depositions is GRANTED.

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. Lee S. Arian

Judge of the Superior Court