Judge Lee S. Arian, Case Number: 22STCV16771, Date: 2023-11-27 Tentative Ruling

On May 20, 2022, plaintiff Gary Fisher (“Plaintiff”) filed this action against defendant Ralphs Grocery Company dba Ralphs (erroneously sued as “Ralphs Grocery Company” and “Kroger Company”) (“Defendant”). On October 17, 2023, Defendant filed the instant motion seeking an order continuing the trial date and to reopen discovery. At the time of the motion’s filing, Trial was scheduled for November 17, 2023. During an ex parte hearing held on October 20, 2023, the Court continued trial to March 1, 2024, but did not reopen discovery.

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (See id. rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) 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).)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by 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. (Id., rule 3.1332(d).)

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 demonstrating a good faith effort at informal resolution. (Code Civ. Proc., § 2024.050, subd. (a).)

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (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, 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).)

As a preliminary matter, Defendant’s request to continue trial is moot based on the Court’s order on October 20, 2023. Thus, the Court shall only determine whether Defendant is entitled to relief under Code of Civil Procedure § 2024.050 for the purpose of reopening discovery.

Here, Defendant seeks to reopen discovery based on the need to conduct further discovery relating to Plaintiff’s injuries that had not been previously disclosed. As represented by Counsel Tatiana Karamian, Defendant’s counsel, Defendant propounded discovery on Plaintiff on October 26, 2022, and Plaintiff responded by December 15, 2022. (Karamian Decl. ¶ 5, Exhs. A-B.) Based on these discovery responses, Defendant issued subpoenas to Plaintiff’s medical providers on February 24, 2023, but Defendant did not receive all of the documents until June 12, 2023. (Id. at ¶ 6.) In reliance on these medical records, Defendant sought to conduct a defense medical examination and issued a demand on September 20, 2023, with an examination date of October 20, 2023. (Id. at ¶ 8.) However, Plaintiff objected on the ground that the examination would occur after the discovery cutoff date. (Ibid.) Thereafter, Plaintiff responded to Defendant’s supplemental interrogatories, indicating that he had received additional treatments that were not identified in his December 15, 2022 response to discovery. (Motion at pg. 9; Karamian Decl. ¶¶ 9-10., Exh. C-D.) Because of this belated disclosure, Defendant asserts that it did not have an opportunity to subpoena the newly identified medical providers and its expert witness will need to evaluate these new treatments. (Karamian Decl. ¶¶ 12-13.) Consequently, Defendant argues that there is good cause to reopen discovery.

In opposition, Plaintiff argues that Defendant has not been diligent in conducting discovery. Plaintiff contends that Defendant had adequate time to prepare for trial because Defendant was on notice of Plaintiff’s injuries since February 18, 2022, and as a result, it had access to information to determine its exposure to liability. (Opposition at pp. 2-3.) Furthermore, Plaintiff asserts that Defendant was aware during his March 29, 2023 deposition that he had undergone a lumbar discectomy, a left knee replacement surgery, and had post-surgical therapy. (Opposition at pp. 6-7; Cheren Decl., Exh. G, Fisher Depo at pp. 38:16-25, 39:1-42:4, 43:7-22, 44:3-13.) Despite this knowledge, Defendant did not request Plaintiff’s physical examination until after the discovery cutoff. (Opposition at pg. 8.) Thus, Plaintiff reasons that there is no showing of due diligence that would warrant the Court to grant Defendant’s request to reopen discovery. (Id. at pg. 9.) Lastly, Plaintiff argues that he would be prejudiced if the instant motion were to be granted because it will result in additional cost and delay. (Id. at pg. 11.)

In reply, Defendant maintains that it has diligently acted in this action and that Plaintiff’s claim of prejudice is illusory because Plaintiff has not shown how he would actually be prejudiced if discovery were reopened. (Reply at pp. 1-2.) Notably, Defendant fails to address Plaintiff’s argument that it had been aware of his surgeries and related treatment as late as his March 29, 2023, deposition. Nonetheless, Plaintiff has not identified any legal prejudice that would result from reopening discovery. Plantiff’s attempt to establish prejudice based on cost and delay are unpersuasive – litigation is, but its very nature, costly, and no delay will occur based on re-opening discovery. Therefore, the Motion is GRANTED IN PART and discovery is re-opened for the limited purpose of conducting Plaintiff’s medical examination that has already been noticed and issuing subpoenas on Plaintiff’s medical providers that were identified in his September 27, 2023 discovery response.

Defendant Ralphs Grocery Company dba Ralphs’ motion to continue trial and reopen discovery is DENIED as moot with regard to the request to continue trial and GRANTED in part as to the request to reopen discovery. Discovery is re-opened for the limited purpose of conducting Plaintiff’s medical examination that has already been noticed and issuing subpoenas on Plaintiff’s medical providers that were identified in his September 27, 2023 discovery response.

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