Judge: Lisa R. Jaskol, Case: 19STCV27082, Date: 2023-12-29 Tentative Ruling
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Case Number: 19STCV27082 Hearing Date: December 29, 2023 Dept: 28
Having considered the moving, opposing, and reply papers, the Court rules as follows.
BACKGROUND
On August 1, 2019, Plaintiff Shai Kedem (“Plaintiff”) filed this action against Defendants Paolo Chiatti (“Chiatti”), Sungah Choi (“Choi”), The Hertz Corporation (“Hertz Corporation”), Hertz Rental (“Hertz Rental”), Hertz Global Holdings (“Hertz Global”), and Does 1-50 for negligence.
On April 7, 2021, Chiatti filed an answer.
On August 9, 2021, the Court lifted the bankruptcy stay.
On August 31, 2021, the Court dismissed Hertz Corporation, Hertz Rental, and Hertz Global without prejudice at Plaintiff’s request.
On May 16, 2023, the Court granted Chiatti’s ex parte application, continued the trial from June 30, 2023 to October 31, 2023, and ruled that discovery, law and motion, and all pre-trial deadlines would be based on the new trial date.
On September 30, 2023, the Court dismissed Choi without prejudice at Plaintiff’s request.
On October 17, 2023, the Court granted Chiatii’s ex parte application in part and continued the trial from October 31, 2023 to February 1, 2023. The Court denied without prejudice Chiatti’s request to continue or reopen discovery to trail the new trial date.
On December 4, 2023, Chiatti filed a motion to reopen discovery. The motion was set for hearing on December 29, 2023. On December 11, 2023, Plaintiff filed an opposition. On December 20, 2023, Chiatti filed a reply.
Trial is currently scheduled for February 1, 2024.
PARTIES’ REQUESTS
Chiatti asks the Court to reopen discovery.
Plaintiff asks the Court to 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
“The Discovery Act imposes two separate ‘cut-offs’ on discovery. Unless otherwise ordered:
• “Discovery proceedings must be
‘completed’ 30 days before the date initially set for trial [citation]; and
• “Discovery motions must be heard no
later than 15 days before the date initially set for trial.” (L. Edmon & C. Karnow, Cal. Practice
Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:445, p. 8E-10, emphasis
omitted (Cal. Practice Guide).)
Different rules apply to expert witness discovery:
• “Discovery proceedings pertaining to expert witnesses
identified under [Code of Civil Procedure section 2034.010 et seq.] may be
‘completed’ until 15 days before the initial trial date; and
• “Motions concerning such discovery may be heard until 10 days before the initial trial date.” (Cal. Practice Guide, supra, ¶ 8:447, p. 8E-11, emphasis omitted.)
Here, the cut-off date for fact discovery is currently October 1, 2023, based on the prior October 31, 2023 trial date. The cut-off date for expert discovery is October 16, 2023.
Chiatti asks to reopen discovery so he can (1) supplement his expert designation to switch his expert from Ronald Kvitne, M.D. to Paul Kaloostian, M.D., as Dr. Kvitne is no longer available to serve as an expert on this case, (2) take Plaintiff’s Defense Medical Examination with Dr. Kaloostian, and (3) depose Plaintiff’s ten designated physicians and expert witnesses.
According to Chiatti, on September 11, 2023, the parties exchanged expert disclosures. Plaintiff designated ten expert witnesses. Chiatti argues that his counsel attempted to schedule the expert witnesses’ depositions but Plaintiff’s counsel did not respond.
Chiatti asserts that about two weeks later, in late September 2023, based on discussions with one of Plaintiff’s attorneys, Chiatti’s counsel believed the case had settled. Chiatti’s counsel therefore took the defense medical examination of Plaintiff off calendar and did not continue his efforts to notice the depositions of Plaintiff’s experts. However, on October 11, 2023, Plaintiff’s counsel denied the existence of a settlement.
Chiatti also argues that he has been diligent in pursuing discovery and “[t]he primary delays in the case were not the fault of Defendant but mainly due to the stay for several years due to Hertz’ bankruptcy.” (Motion p. 7.) The Court’s file, however, shows that only six months passed between Hertz Corporation’s filing of a notice of stay of proceedings and the Court’s August 9, 2021 lifting of the bankruptcy stay.
Plaintiff argues that Chiatti has not been diligent and should have completed the defense medical examination and expert witness depositions prior to settlement negotiations. Plaintiff also argues that granting the motion would prejudice her because the discovery Chiatti seeks cannot be completed before the February 1, 2024 trial.
Chiatti does not state or provide evidence showing the date on which Plaintiff’s defense medical examination was scheduled before Chiatti took it off calendar. (Plaintiff states that the defense medical examination was never noticed.) If the defense medical examination was scheduled on a date after the fact discovery cut-off date (October 1, 2023), then Chiatti’s counsel’s belief that the case had settled did not affect Chiatti’s ability to proceed with the defense medical examination.
Lacking information about the previously-scheduled date of Plaintiff’s defense medical examination, the Court cannot assess Chiatti’s diligence in seeking the examination. Therefore, the Court denies the motion to reopen discovery for the purpose of allowing Chiatti to take Plaintiff’s defense medical examination.
Having weighed the factors listed in Code of Civil Procedure section 2024.050, the Court grants Chiatti’s motion for the purpose of supplementing his expert designation to replace Ronald Kvitne, M.D. with Paul Kaloostian, M.D. and deposing Plaintiff’s ten designated physicians and expert witnesses. The discovery and motion deadlines for these matters will trail the February 1, 2024 trial date.
CONCLUSION
The Court DENIES IN PART the motion of Defendant Paolo Chiatti to reopen discovery and denies the request to reopen discovery for the purpose of taking the defense medical examination of Plaintiff Shai Kedem.
The Court GRANTS IN PART the motion of Defendant Paolo Chiatti to reopen discovery and grants the request to reopen discovery for the purpose of supplementing his expert designation to replace Ronald Kvitne, M.D. with Paul Kaloostian, M.D. and deposing Plaintiff’s ten designated physicians and expert witnesses. The discovery and motion deadlines for these matters will trail the February 1, 2024 trial date.
The Court will grant no further continuances without a compelling showing of good cause.
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.