Judge: Lisa R. Jaskol, Case: 19STCV10729, Date: 2024-01-02 Tentative Ruling

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Case Number: 19STCV10729    Hearing Date: January 2, 2024    Dept: 28

Having considered the moving, opposing, and reply papers, the Court rules as follows. 

BACKGROUND 

On May 28, 2019, Plaintiff Jordan Nice (“Plaintiff”) filed a complaint against Defendants Home Depot U.S.A., Inc. (“Defendant”) and Does 1-50 for premises liability and general negligence. 

On October 1, 2019, Defendant filed an answer. 

On September 27, 2022, the Court granted Plaintiff’s motion to continue trial and reopen discovery.  The Court continued the trial from November 1, 2022 to March 7, 2023 and ordered that discovery and related dates would be determined by the new trial date. 

On February 16, 2023, the Court granted Plaintiff’s motion to continue trial and reopen discovery.  The Court continued the trial from March 7, 2023 to July 25, 2023 and ordered that discovery and law-and-motion cut-off dates would be determined by the new trial date. 

On March 21, 2023, based on the parties’ stipulation, the Court continued the trial from July 25, 2023 to December 6, 2023 and ordered that all discovery and motion cut-off dates would be reset based on the new trial date. 

On November 16, 2023, the Court granted in part Defendant’s ex parte application to continue the trial.  The Court continued the trial from December 6, 2023 to February 28, 2024.  The Court denied without prejudice the request to continue or reopen discovery but observed that the issues of discovery and pretrial deadlines were raised in a pending motion to continue trial set for December 27, 2023. 

On December 7, 2023, Defendant filed a motion to reopen non-expert discovery, which was set for hearing on January 2, 2024.  On December 18, 2023, Plaintiff filed an opposition.  On December 26, 2023, Defendant filed a reply. 

On December 21, 2023, Defendant withdrew its motion to continue trial set for December 27, 2023. 

Trial is currently scheduled to begin on February 28, 2024. 

PARTIES’ REQUESTS 

Defendant requests that the Court reopen non-expert discovery. 

Plaintiff requests that the Court deny the motion. 

LEGAL STANDARD 

Code of Civil Procedure section 2024.020 provides: 

“(a) Except as otherwise provided in this chapter, any 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. 

“(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” 

(Code Civ. Proc., § 2024.020.) 

Code of Civil Procedure section 2024.050 provides: 

“(a) 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 under Section 2016.040. 

“(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: 

“(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. 

“(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. 

“(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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. Proc., § 2024.050.) 

Code of Civil Procedure section 2016.040 provides: “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.” 

DISCUSSION 

          Defendant asks the Court to reopen non-expert discovery, arguing it only recently (on November 9, 2023) learned that Plaintiff has continued to receive medical treatment for injuries allegedly caused by the May 12, 2017 accident.  Defendant asserts: “Up to this point Defendant had not received Plaintiff’s treatment and billing records past the March 30, 2022, and gave no indication that he was still under the supervision and seeking treatment for alleged incident related treatment beyond this date.”  (Motion pp. 4-5, citing a bill for medical treatment.) 

Defendant argues the information it learned on November 9, 2023 “is a significant change in this case that the Defendants have been wholly unable to investigate . . . .”  (Motion p. 7.)   Defendant wishes to issue supplemental interrogatories, demands for production of documents, and deposition subpoenas.  According to Defendant, reopening discovery will not affect the February 28, 2024 trial date because the limited discovery sought can be accomplished before that date. 

Defendant also seeks an order reopening discovery because Defendant does not know if Plaintiff informed his treating doctors about injuries he suffered in 2014 and 2015.  Defendant argues: “Given the lack of documentation on this particular record, and the lack of records as to Plaintiff’s 2014 automobile injury, 2015 work injury as a stunt man, and 2016 medical issues, Defendant needs these records to support or discard whether these facts significantly influence the opinions of the experts in this case.”  (Fisher Dec. ¶ 3.)  Plaintiff does not explain why he did not previously obtain these records in discovery. 

In response, Plaintiff asserts that Defendant has long known about Plaintiff’s continued treatment.  In discovery responses served on September 20, 2022, Plaintiff identified medical providers who were providing ongoing treatment.  (See Kruse Dec. ¶ 6 & Exh. E.)  In discovery responses served on May 8, 2023, Plaintiff identified medical providers from whom he sought treatment or consultation since September 1, 2022.  (See Kruse Dec. ¶ 6 & Exh. F.) 

Plaintiff also argues that Defendant asked Plaintiff about his prior injuries at his 2020 deposition (see Kruse Dec. Exh. C), conducted an independent medical examination on January 13, 2021, and had the opportunity to subpoena and review Plaintiff’s medical records.  

Defendant’s reply refutes none of these assertions. 

The Court denies the motion.  Defendant has not provided a meet and confer declaration as required by Code of Civil Procedure section 2024.050, subdivision (a).  Even if Defendant had provided a meet and confer declaration, Defendant has failed to establish it was diligent in seeking the discovery it now wishes to pursue.  Moreover, in arguing that Plaintiff had “given no indication [before November 9, 2023] that he was still under the supervision and seeking treatment for alleged incident related treatment beyond [March 30, 2022]” (Motion pp. 4-5), Defendant misled the Court.  (See Krause Dec. ¶ 6 & Exhs. E, F.) 

Code of Civil Procedure section 2024.050, subdivision (c), mandates an award of sanctions “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. Proc., § 2024.050, subd. (c).)  The Court does not find that Defendant acted with substantial justification in filing this motion and does not find that imposition of sanctions would be unjust.  The Court imposes sanctions of $500 against Defendant. 

CONCLUSION 

The Court DENIES the motion of Defendant Home Depot U.S.A., Inc. to reopen discovery. 

The Court ORDERS Defendant Home Depot U.S.A., Inc. and its counsel to pay Plaintiff Jordan Nice $500 in sanctions by February 1, 2024. 

Moving party is ordered to give notice of this ruling. 

Moving party is ordered to file the proof of service of this ruling with the Court within five days.