Judge Lee S. Arian, Case Number: 21STCV25748, Date: 2024-02-15 Tentative Ruling

This action arises from a slip and fall. On July 13, 2021, Plaintiff Yasmin Ayoub (“Plaintiff”) filed a Complaint against Defendants 99 Cents Only Stores LLC (“Defendant”), Michelle Gaddy, and DOES 1 to 50, alleging causes of action for (1) General Negligence and (2) Premises Liability.

On November 8, 2022, the Court entered an order continuing trial from January 10, 2023 to September 1, 2023 pursuant to a stipulation between the parties.

On August 3, 2023, the Court granted Plaintiff’s ex parte application to continue trial and the Court continued non-jury trial from September 1, 2023, to March 13, 2024. (08/03/23 Minute Order.) As to Plaintiff’s request to extend the discovery cut-off, the Court stated that “[c]ounsel [is] to meet and confer regarding discovery. Discovery remains closed subject to a motion to reopen discovery or a stipulation by the Parties.” (08/03/23 Minute Order.)

On January 9, 2024, the Court denied Defendant’s ex parte application to reopen expert discovery only. (01/09/24 Minute Order.) The Court stated that “[d]iscovery can only be re-opened by noticed motion.” (01/09/24 Minute Order.)

On January 19, 2024, Defendant filed and served the instant motion for an order reopening expert discovery only (the “Motion”). Pursuant to the Motion, Defendant also seeks an order that the expert discovery cut-off— specifically the time to complete expert depositions—be extended up to five (5) days prior to the current trial date of March 13, 2024, or through March 8, 2024.

On January 30, 2024, Plaintiff filed and served an opposition to the Motion in which Plaintiff states that she “is not opposed to reopening all discovery and continuing the current trial date, however [she] is opposed to reopening expert discovery only." (Opposition, 1:19-21, emphasis in original.) Plaintiff requests that the Court continue the current trial date and all related discovery deadlines or, alternatively, deny the Motion in its entirety and leave all discovery closed. (Opposition, 1:21-23.)

Initially, the Court finds that the meet and confer requirement has been met pursuant to Code Civ. Proc., § 2024.050, subd. (a). (Anz Decl., ¶ 7.)

The Court finds that Plaintiff’s request—in her opposition brief—to continue trial and re-open all discovery related deadlines is procedurally improper. Plaintiff must file and serve a noticed motion if she wishes to reopen discovery or extend discovery deadlines. (CCP § 2024.050.) As to Plaintiff’s request for a trial continuance, Plaintiff must seek such relief “by a noticed motion or an ex parte application.” (Cal. Rules of Court, Rule 3.1332, subd. (b).)

Plaintiff cannot seek a trial continuance or the reopening of discovery or accompanying cutoff dates in an opposition to another party’s motion. The Court therefore DENIES Plaintiff’s request to continue trial and re-open all discovery related deadlines.

“[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).)

“Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to a[n] [expert] witness . . . on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.030.)

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.)

In support of the Motion, Defendant’s counsel, Andrea J. Anz (“Anz”), provides a declaration stating that based on the previous trial date in this case of September 1, 2023, routine discovery closed on August 2, 2023. (Anz Decl., ¶ 4.) Supplemental designation of experts took place on August 2, 2023. (Id.) Following the Court’s August 3, 2023, hearing on Plaintiff’s ex parte application to continue trial, the parties continued to meet and confer but no agreement was reached concerning discovery. (Id., ¶¶ 5-7; Exhibits C-D.) Plaintiff indicated in her ex parte application that expert discovery has not been completed despite the best efforts of both parties. (Id., ¶ 5; Exhibit B.) Counsel declares that Defendant filed an ex parte application to reopen expert discovery, but such application was denied. (Id., ¶ 8; Exhibit E.)

Anz’s declaration submitted with the reply brief sets forth correspondence between the parties concerning the deposition of Defendant’s Person Most Knowledgeable.

The Court finds that Defendant has not made a showing warranting an order reopening expert witness discovery pursuant to California Code of Civil Procedure Section 2024.050. Neither the moving nor reply declarations of counsel sets forth any indication of the necessity of expert discovery. Moreover, neither the moving nor reply declarations of counsel sets forth any detail regarding diligence in obtaining any expert discovery. The declarations of counsel are void of any showing of good cause. Based on counsel’s declarations, the Court cannot ascertain whether any efforts were taken to obtain expert witness discovery prior to the filing of the instant motion.

Thus, Defendant has not made a showing of good cause. As such, the Motion is DENIED.

Defendant’s Motion to Reopen Expert Discovery Only and to Extend the Time for Completion of Expert Discovery is 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