Judge: Lee S. Arian, Case: 21STCV31236, Date: 2024-01-22 Tentative Ruling

Case Number: 21STCV31236    Hearing Date: January 22, 2024    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Andrea Vincent and Gilberto Chavez  

RESPONDING PARTY: Plaintiffs George Uribe and William Rodriguez, a minor by and through his guardian ad litem Angelica Uribe

I.            INTRODUCTION

This action arises from a motor vehicle accident which occurred on September 6, 2019. On August 24, 2021, Plaintiffs George Uribe and William Rodriguez, a minor by and through his guardian ad litem Angelica Uribe (“Plaintiffs”) filed a complaint against Defendants Andrea Vincent and Gilberto Chavez (collectively, “Defendants”), as well as Does 1 to 25, alleging a single cause of action for motor vehicle.

On October 29, 2021, Defendants filed an answer to the complaint.

On February 6, 2023, the Court entered an order and stipulation which continued trial from February 21, 2023, to October 26, 2023.

On September 21, 2023, Defendants filed the instant motion for an order to continue all discovery and motion cutoff dates to be based on the current trial date at the time the motion is being heard. 

On September 25, 2023, Defendants filed an ex parte application to continue the trial date and all pre-trial related deadlines. On September 27, 2023, the Court granted Defendants’ ex parte application and continued trial from October 26, 2023, to March 14, 2024. (09/27/23 Minute Order.) The Court noted that it could not “continue or reopen discovery by ex parte application. Counsel has a hearing date scheduled for 1/22/24 to compel an IME.” (09/27/23 Minute Order.) The Court stated that “because the Court cannot reopen or continue discovery deadlines, the discovery deadlines remain tied to the current, not the new trial date.” (09/27/23 Minute Order.) The Court advised Defendants that they could file a noticed motion to reopen discovery. (09/27/23 Minute Order.)

Initially, the Court notes that Defendants have not filed a motion to compel IME.

On January 8, 2024, Plaintiffs filed an opposition to Defendants’ motion, to which Defendants replied on January 12, 2024.

Initially, the Court finds that Defendants have satisfied the meet and confer requirement pursuant to Code Civ. Proc. § 2025.450. (Gonter Decl., ¶ 5.)

II.          LEGAL STANDARD

“[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).)

 “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.” (Code Civ. Proc., § 2024.050, subd. (a).)  Code Civ. Proc. § 2024.050 specifically allows a discovery motion to be heard after the discovery motion cutoff date. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.)

In assessing a motion brought under Code Civ. Proc. § 2024.050, a court considers 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 to reopen or continue discovery. (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.)

III.        DISCUSSION

Defendants contend that crucial discovery steps still need to be completed including deposing relevant fact and medical witnesses, conducting an IME, and obtaining relevant medical records. (Motion, 5:24-26.) Plaintiffs assert that Defendants’ claimed necessity and reasons for discovery is a misrepresentation to the Court. (Opposition, 3:22-23.) The crux of Defendants’ motion is that they seek an order extending discovery for the purpose of conducting an IME.

Declaration of Defendants’ Counsel

Defendants provide the declaration of their counsel K. Robert Gonter (“Gonter”) in support of the motion. Defendants have retained Dr. Scott K. Forman, a board-certified orthopedic surgeon, to conduct a medical physical examination of Plaintiff William Rodriguez (“Rodriguez”) and served an IME notice on September 6, 2023. (Gonter Decl., ¶¶ 3, 12; Exhibit A.) Plaintiffs are alleging injuries arising from a motor vehicle accident which occurred on September 6, 2019. (Gonter Decl., ¶ 2.) The first available date for an IME with Dr. Forman was not until October 26, 2023, which was after the discovery cutoff. (Gonter Decl., ¶ 4.) Defendants timely served a notice of physical examination on Plaintiff Rodriguez on September 6, 2023, but Dr. Forman was not available until after the discovery cutoff to evaluate Plaintiff Rodriguez. (Gonter Decl., ¶ 7.) Counsel states that Defendants do not control Dr. Forman’s calendar or his medical practice. (Gonter Decl., ¶ 7.)

Counsel attests that at the time of the motion, trial was set for October 26, 2023, and discovery and motion cutoff deadlines were to be completed by September 26, 2023. (Gonter Decl., ¶ 8.) Counsel states that crucial discovery steps still need to be completed including deposing relevant fact and medical witnesses, conducting an IME, and obtaining relevant medical records. (Gonter Decl., ¶ 15.) The outstanding discovery is crucial to the defense and there is a compelling need to extend or reopen discovery. (Gonter Decl., ¶¶ 16, 18.)

Declaration of Plaintiffs’ Counsel

In opposition to the Motion, Plaintiffs’ counsel Anthony M. Crisci (“Crisci”) declares that Plaintiff Rodriguez served verified discovery responses, including document production, on December 20, 2021. (Crisci Decl., ¶ 3.) Counsel indicates that all medical records pertaining to this action were included in such responses, and counsel’s office did not object to any subpoenas which were served to all medical facilities where Plaintiff Rodriguez sought treatment. (Crisci Decl., ¶ 3.) Counsel is unclear on what medical records Defendants are now claiming they need. (Crisci Decl., ¶ 3.) Counsel states that Defendants refuse to meet and confer regarding deposition dates for Defendants’ six designated expert witnesses. (Crisci Decl., ¶ 4; Exhibit A.)  

Analysis

Ultimately, the issue here comes down to diligence vs. need.  Defendants have clearly not been diligent; they had almost two years from the time they received information regarding Plaintiff Rodriguez’s injuries to schedule an independent medical examination.  They failed to schedule that examination until the last minute, resulting in the doctor they chose to perform that examination being unavailable until after the discovery cut-off.  (It is unclear to the Court why Defendants did not find another doctor to provide the examination prior to the discovery cut-off.) 

Defendants contend that despite their apparent lack of diligence, they have a significant need for the medical examination and will be highly prejudiced without it.  Realistically, however, that is prejudice of their own making.  It is hard to find that such prejudice, then, outweighs the lack of diligence.

Moreover, reopening discovery would likely cause a delay in trial. Trial is currently scheduled to commence on March 14, 2024. Defendants’ position is that they need to depose “relevant fact and medical witnesses, conduct[] an IME, and obtain[] relevant medical records.” (Motion, 5:24-26.) If the Court were to extend the discovery deadline, such deadline would expire on February 14, 2024. The Court fails to see the likelihood of Defendants completing all their purported outstanding discovery by such date. Defendants even concede that they have no control over Dr. Forman’s calendar or medical practice. Thus, it is possible that an IME of Plaintiff—and the depositions of witnesses and obtaining medical records—would occur after any extended discovery cutoff date based on the March 14, 2024 trial date.

In sum, the Court finds that Defendants have not been diligent in seeking discovery as they fail to present reasons why discovery was not completed earlier. The Court finds that reopening discovery would likely prevent the case from going to trial on March 14, 2024.  

Accordingly, the Court is inclined to exercise its discretion under Code Civ. Proc. § 2024.050 and DENY Defendants’ motion to continue all discovery and motion cutoff dates.  However, before doing so, the Court will hear from Defendants regarding what specific discovery they believe they can do without moving the trial date.

     Dated this 22nd day of January 2024