Judge: Lisa R. Jaskol, Case: 20STCV28114, Date: 2023-08-29 Tentative Ruling
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Case Number: 20STCV28114 Hearing Date: September 19, 2023 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On July 27, 2020, Plaintiff Dawn Krantz (“Plaintiff”) filed this action against Defendants Benjamin Benham and Dermatology & Hair Restoration Specialists for medical malpractice.
On December 7, 2020, Defendant Benjamin Behnam, M.D., erroneously sued and served as Benjamin Benham and Dermatology & Hair Restoration Specialists (“Defendant”), filed an answer.
On October 25, 2022, the Court denied Defendant’s motion for summary judgment.
On June 22, 2023, the parties stipulated that discovery was closed, but “expert [depositions] of the seven retained designated experts and deposing any non-retained experts shall continue with the new trial date” of August 16, 2023.
On July 26, 2023, Plaintiff filed a motion to compel the inspection of pathology slides or, in the alternative, to reopen discovery. The motion was set for hearing on September 19, 2023.
On August 2, 2023, the Court granted Plaintiff’s ex parte application to continue the trial but denied Plaintiff’s ex parte request to reopen discovery without prejudice to filing a noticed motion.
Trial is currently scheduled for February 7, 2024.
PARTY’S REQUEST
Plaintiff requests that the Court compel Defendant to produce pathology slides for inspection or, in the alternative, re-open discovery for the limited purpose of allowing Plaintiff’s expert to inspect the pathology slides.
LEGAL STANDARD
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.)
DISCUSSION
Plaintiff asserts the following:
On May 9, 2023, Plaintiff served on Defendant a notice of inspection of Plaintiff’s left thigh biopsy slides (“pathology slides”) to be conducted by Plaintiff’s expert, Marilyn Mehlmauer, M.D. On May 18, 2023, Defendant objected and the inspection did not go forward as noticed.
On July 14, 2023, Plaintiff’s counsel attempted to meet and confer with Defense counsel regarding the inspection. On July 18th, 2023, Plaintiff’s counsel appeared ex parte seeking relief. Defendant opposed Plaintiff’s ex parte application.
Dr. Mehlmauer must inspect the pathology slides to adequately prepare and finalize her opinions prior to trial. Alternatively, Plaintiff seeks to reopen discovery for the limited purpose of allowing Plaintiff’s experts to perform the inspection of the pathology slides.
Plaintiff also seeks relief under Code of Civil Procedure section 473 for excusable attorney neglect in counsel’s failure to notice the inspection before the fact discovery cut off because counsel mistakenly believed an inspection by an expert falls within expert discovery and therefore waited to notice the inspection until expert discovery.
Although Defendant did not file an opposition to this motion, the Court has reviewed Defendant’s opposition to Plaintiff’s ex parte application seeking similar relief. Defendant argued that Plaintiff has not been diligent in seeking inspection of the slides and that granting Plaintiff’s request will require Defendant to incur the expense and inconvenience of conducting another deposition of Dr. Mehlmauer.
Having weighed the factors set out in Code of Civil Procedure section 2024.050, the Court grants the request to re-open discovery. Although Plaintiff delayed seeking inspection of the pathology slides until after the applicable discovery cut-off date, Plaintiff has explained that her counsel mistakenly believed the inspection of the pathology slides constituted expert discovery, which had a later deadline. (The Court, however, denies Plaintiff’s request for relief under Code of Civil Procedure section 473, subdivision (b), which does not apply here.) In addition, Plaintiff asserts that inspection of the pathology slides is important to her case. The trial has been continued to February 7, 2024, so reopening discovery for the sole purpose of allowing Dr. Mehlmauer to inspect the pathology slides will not prevent the case from going to trial on the date set.
CONCLUSION
The Court GRANTS Plaintiff Dawn Krantz’s motion to compel inspection or re-open discovery. Fact discovery is re-opened for the limited purpose of inspection of the pathology slides by Plaintiff’s expert Marilyn Mehlmauer, M.D.
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.