Judge Lee S. Arian, Case Number: 21STCV09345, Date: 2024-01-05 Tentative Ruling

This action arises from Plaintiff sustaining injuries arising from a pothole on August 28, 2020. On March 10, 2021, Plaintiff Wesley Schwartz (“Plaintiff”) filed a Complaint against Defendants City of Los Angeles (“Defendant”) and Does 1 through 20, alleging causes of action for: (1) Public Entity Liability, (2) Dangerous Condition of Public Property, and (3) Negligence.

On July 25, 2022, the Court denied Defendant’s ex parte application to continue trial and indicated that the Court would “not continue discovery deadlines pursuant to an ex parte application.” (07/25/22 Minute Order.)

On August 22, 2022, the Court granted Defendant’s motion to continue trial. (08/22/22 Minute Order.) Trial was continued from September 7, 2022, to December 6, 2022. (08/22/22 Minute Order.)

On November 22, 2022, pursuant to a stipulation entered into between the parties, the Court continued trial from December 6, 2022, to September 8, 2023. (11/22/22 Minute Order.)

On September 12, 2023, the Court held a Final Status Conference. Pursuant to oral stipulation, the Court continued trial from September 19, 2023, to October 13, 2023. (09/12/23 Minute Order.) The Court stated that “[d]iscovery remains closed except for expert discovery.” (09/12/23 Minute Order.) On September 25, 2023, the Court issued a Nunc Pro Tunc Order which indicated that trial was continued to November 13, 2023, and not October 13, 2023 as incorrectly set forth in the Court’s September 12, 2023 Minute Order. (09/25/23 Minute Order.)

On November 13, 2023, pursuant to oral stipulation, the Court granted Plaintiff’s request for a trial continuance due to lead counsel being unavailable to appear for medical reasons. (11/13/23 Minute Order.) The Court continued trial from November 13, 2023, to December 13, 2023. (11/13/23 Minute Order.)

On December 7, 2023, the Court granted in part the ex parte application of Defendant to take the depositions of Plaintiff’s experts, or, alternatively, to continue the trial, or, alternatively to preclude the experts from testifying. (12/07/23 Minute Order.) Pursuant to the request of Plaintiff, trial was continued from December 13, 2023 to February 8, 2024. (12/07/23 Minute Order.) The Court stated that “[l]eave to take depositions . . . must be done by noticed motion.” (12/07/23 Minute Order.)

On December 11, 2023, Defendant filed the instant motion for on order reopening expert discovery for the limited purpose of taking the depositions of three of Plaintiff’s retained expert witnesses (Rajan Patel (“Patel”), Gary Gsell (“Gsell”), and David Fish (“Fish”)),and compelling the depositions within seven days (the “Motion”). Alternatively, Defendant moves for an order continuing the trial approximately 60 days, with the expert discovery cutoffs to correspond to the continued trial date and compelling the expert depositions at least 30 days before the continued trial date. If such relief is not granted, Defendant alternatively moves for an order precluding the experts from testifying at trial.

On December 21, 2023, Plaintiff filed an opposition to the Motion. On December 27, 2023, Defendant filed a reply brief.

“[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 Code Civ. Proc. § 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 Civ. Proc. § 2024.050(a) provides 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.”

In assessing a motion brought under Code Civ. Proc. § 2024.050, a court assesses the following factors: (1) the necessity and the reasons for 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)(1)-(4).) A court has discretion on whether to grant a motion brought under California Code of Civil Procedure, Section 2024.050. (Code Civ. Proc., § 2024.050, subd. (b).) “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.) Good cause must be shown to reopen discovery. (Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1293.)

A motion to reopen discovery “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2024.050, subd. (a).) “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.)

In support of the Motion, Jay B. Lake (“Lake”), Defendant’s counsel, declares that Plaintiff’s counsel has “refused to make the experts available for depositions claiming [that] [Defendant] waived the right to take the depositions because the former defense counsel took the depositions off calendar.” (Lake Decl., ¶ 7; Exhibit D.) Counsel provides e-mail correspondence to Plaintiff’s counsel confirming Plaintiff’s refusal to make Plaintiff’s experts available for deposition. (Id.)

Defendant asserts that expert discovery should be reopened because current counsel substituted in as counsel for Defendant and was under the working assumption that all expert depositions had been taken. Moreover, Defendant also contends that its lead handling attorney, Jeff Bonelli (“Bonelli”), fell ill which forced Lake to take over handling of the case. Defendant contends that it was only after Lake took over as the lead handling attorney was it discovered that none of Plaintiff’s experts had been deposed. Plaintiff asserts that discovery should not be reopened because Defendant has not been diligent, additional depositions will likely interfere with the trial date, and the trial has already been continued five times, and additional depositions will cause Plaintiff prejudice in the form of additional fees, which is particularly unfair because Plaintiff already spent $30,000 in preparing for depositions that the defense chose not to do when previously noticed. In reply, Defendant contends that often a change in counsel leads to some level of confusion and that should not warrant the disadvantage that would occur here. Further, Defendant contends that public policy supports decisions on the merits.

In support of the Motion, Lake declares that on August 3, 2023, former defense counsel noticed the depositions of Plaintiff’s experts. (Lake Decl., ¶ 4; Exhibit B.) On August 9, 2023, former defense counsel withdrew the remaining deposition notices, without prejudice, because the defense of the case was being transferred to Lewis Brisbois Bisgaard & Smith. (Id., ¶ 5; Exhibit C.) Former defense counsel was only able to take the deposition of one of the experts, Beau LeBlanc, on August 24, 2023. (Id., ¶ 6.) When Lewis Brisbois Bisgaard & Smith received transfer of the case, there was a working assumption that all the expert depositions had been taken. (Id.) Bonelli was the lead handling attorney on the case for Lewis Brisbois Bisgaard & Smith; however, he fell ill, which forced Lake to take over handling of the case. (Id.) It was only after Lake took on the role as the lead handling attorney did counsel learn that Plaintiff’s experts had not been deposed. (Id.) Plaintiff’s counsel has refused to make the experts available for deposition. (Id., ¶ 7.) Counsel argues that if Defendant cannot depose Plaintiff’s expert, it would introduce a huge, one-sided surprise element into the trial and put Defendant at an enormous disadvantage. (Id., ¶ 8.)

In opposition to the Motion, Brian Poulter (“Poulter”), Plaintiff’s counsel, declares that since current defense counsel substituted into this case on August 25, 2023, they have failed to notice or re-notice a single one of Plaintiffs’ experts’ depositions before the parties’ October 30, 2023, expert discovery cutoff. (Poulter Decl., ¶ 2.) Counsel declares that Defendant has known about the identity of Gsell since July of 2022. (Id.) Defendant learned of the identities of Patel and Fish when the parties exchanged expert witness information for the third time in July of 2023. (Id.) Defendant failed to take their depositions through no fault of Plaintiff. (Id.) On August 28, 2023, Plaintiff’s counsel attended a Zoom call with Defendant’s entire legal team where expert depositions were discussed. (Id.) Plaintiff’s counsel followed up the Zoom call with an e-mail reminding all involved to provide dates for Plaintiff’s experts. (Id.) Defendant, however, did not notice Plaintiff’s experts’ depositions. (Id.)

On August 25, 2023, Rod Cappy informed Plaintiff’s counsel that himself, Bonelli, and Lillian Harwell of Lewis Brisbois were substituting into the case and asked that the depositions of Brad Arvit and Patel be postponed to allow them to get “up to speed” on the file. (Id., ¶ 7.) Plaintiff’s counsel agreed and reminded Mr. Cappy and his team in writing to provide alternative dates for depositions. (Id.) On September 12, 2023, Lake appeared at the continued FSC and represented to the Court that he may file a motion to reopen discovery if it was deemed necessary. (Id. ¶ 9.) Counsel argues that Defendant did not re-notice the depositions of Gsell, Patel, or Fish. (Id.) On November 13, 2023, the parties appeared at their continued FSC, and the parties agreed to a one-month continuance to accommodate Bonelli’s illness and Lake’s assumption of the lead trial counsel role. (Id., ¶ 10.) No request was made to re-open discovery at the continued FSC and no deposition notices were sent. (Id.) On November 17, 2023, during a call with Lake, it was the first time that Lake broached the subject of Plaintiff’s experts. (Id., ¶ 11.) Counsel declares that although expert discovery closed on October 30, 2023, Lake waited 84 days—from the September 12, 2023, FSC until the December 4, 2023, date of Defendant’s ex parte application—to make a request to reopen discovery. (Id., ¶ 15.) Counsel attests that no reasonable explanation has been provided as to why the Motion was not made sooner. (Id., ¶ 17.) Counsel argues that failing to review a file and/or assuming that expert discovery had concluded is not good cause warranting the relief Defendant seeks. (Id.) Trial has been continued five times and counsel argues that trial in this matter will be impacted by Defendant’s last-minute request to depose Plaintiff’s experts. (Id., ¶¶ 19, 21.)

This motion comes down to the issues of lack of diligence versus timing. The Court finds that Plaintiff has convincingly established that Defendant has lacked diligence in taking the expert depositions. While Defendant seeks to excuse that by pointing to a substitution in counsel and illness of counsel, those excuses are exceedingly unpersuasive. Plenty of time and opportunity existed for the depositions to be noticed after the change in legal representation. Significantly, Defendant’s counsel has failed to indicate why the expert depositions were not re-noticed promptly after multiple discussions with Plaintiff’s counsel on such topic. Quite simply, this lack of diligence is, in and of itself, a sufficient basis to deny the motion.

That said, the Court recognizes that there now may be time for discovery without impacting the February 8, 2024, trial date. But, unfortunately, expert discovery, especially multiple instances of such discovery, opens the door to potential issues that could impact the trial date.

Considering these factors, the Court will open discovery for one expert deposition, namely, the deposition of Dr. Patel. He was one of two experts last identified by Plaintiff and was the last expert deposition to be cancelled in order to give new counsel time to “get up to speed.” In the Court’s view, the failure to move forward with Dr. Patel’s deposition was the least egregious lack of due diligence. Further, the Court perceives that it should be a relatively simple proposition to ensure that Dr. Patel’s deposition occur before February 8, 2024, thereby ensuring that trial proceeds as scheduled. Also, one such expert deposition mitigates the trial impact of not being able to take all of the requested depositions, albeit Defendant has only itself to blame for that impact. Finally, though cost is not generally the type of prejudice that the Court considers when weighing prejudice, reducing the depositions to one also reasonably takes into account the costs Plaintiff has had to bear due to Defendant’s clear lack of diligence. All told, then, the Court exercises its discretion to open expert discovery for the deposition of Dr. Patel to take place at least one week prior to the current February 8, 2024, trial date.

Therefore, exercising its discretion under Code Civ. Proc., § 2024.050, the Court GRANTS in part and DENIES in part Defendant’s request to reopen expert discovery. While the Court finds that Defendant has not shown diligence in seeking such expert depositions upon current counsel substituting into this action, it finds that opening discovery for the deposition of Dr. Patel appropriately balances the factors set forth in CCP Section 2024.050.

Defendant requests that the Court continue the trial date approximately 60 days and that the expert depositions be compelled at least 30 days before the continued trial date.

Code Civ. Proc. § 128(a)(8) provides that the court has the power to “amend and control its process and orders so as to make them conform to law and justice.” “[T]he power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances.” (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.)

“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated by the parties, must make the request for a continuance by a noticed motion or ex parte application . . . with supporting declarations.” (Cal. Rules of Court, Rule 3.1332(b).) “The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Ibid.)

“[E]ach request for a continuance must be considered on its own merits.” (Cal Rules of Court, Rule 3.1332(c). “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Ibid.) Good cause may be present where a party has not been unable “to obtain essential testimony, documents, or other material evidence despite diligent efforts” or there has been a “significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Cal. Rules of Court, Rule 3.1332(c)(6)-(7).) Good cause may also be present where there is an “unavailability of trial counsel because of death, illness, or other excusable circumstances.” (Cal. Rules of Court, Rule 3.1332(c)(3).)

California Rules of Court, Rule 3.1332 sets forth a list of non-exhaustive factors to be analyzed when determining whether good cause for a trial continuance is present. A court considers factors such as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, Rule 3.1332(d).)

The Court references its discussion of reopening expert discovery from above and incorporates it herein. As stated above, Defendant has not shown diligence in seeking the depositions of Plaintiff’s experts. While the Court acknowledges that prior lead counsel fell ill, the declaration of Lake in support of the Motion does not make a showing of diligence in seeking the expert depositions and therefore has not shown good cause. Moreover, if a trial continuance was granted, it would be the fifth trial continuance in this action.

Therefore, exercising its discretion, the Court DENIES Defendant’s request to continue the trial date in this action.

Defendant asserts that there is good cause to preclude Plaintiff’s experts from testifying at trial.

“[T]rial courts regularly exercise their basic power to insure that all parties receive a fair trial by precluding evidence.” (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 425 [citation omitted, internal quotations omitted].) “[T]he trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to . . . [m]ake that expert available for a deposition.” (Code Civ. Proc., § 2034.300, subd. (d).)

Defendant contends that it has been trying to take the depositions of Plaintiff’s experts, but Plaintiff has refused to produce the experts for deposition. The Court finds that Defendant’s contention is not persuasive. It was Defendant’s prior counsel who withdrew the depositions of Gsell and Fish. Furthermore, current counsel failed to seek the depositions of such experts until after the discovery cutoff date without making a showing of diligence. Thus, precluding Plaintiff’s experts from testifying due to the conduct of Defendant’s current and former counsel is inappropriate. The Court finds that Defendant has not shown a basis to preclude Plaintiff’s experts from testifying at trial. And, in fact, the Court finds this argument to border on sanctionable.

Therefore, the Court DENIES Defendant’s request to preclude Plaintiff’s experts from testifying at trial.

The Motion is GRANTED in part to open expert discovery to allow the taking of Dr. Patel’s deposition by February 1, 2024, and is otherwise DENIED.

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