Judge: Lisa R. Jaskol, Case: 21STCV01120, Date: 2024-01-26 Tentative Ruling
Case Number: 21STCV01120 Hearing Date: January 26, 2024 Dept: 28
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On January 12, 2021, Plaintiff Babak Adiban Rad (“Plaintiff”) filed this action against Defendants Tamara Johnson (“Tamara Johnson”), Anthony Ray Johnson, and Does 1-20 for motor vehicle tort and general negligence.
On May 24, 2021, Tamara Johnson and Anthony Johnson (“Defendants”) filed an answer and a cross-complaint against Cross-Defendant Mitchell Williams Andrews (“Andrews”) and Roes 1-100 for total equitable indemnity, contribution based upon comparative fault, and declaratory relief.
On September 2, 2021, Andrews filed an answer to the cross-complaint.
On October 26, 2021, Plaintiff amended the complaint to include Defendant Sean Anthony Johnson as Doe 1. On November 18, 2021, Sean Anthony Johnson filed an answer.
On August 12, 2022, the Court dismissed the cross-complaint against Andrews with prejudice at the request of Tamara Johnson and Anthony Johnson.
On January 2, 2024, Plaintiff filed a motion to continue the trial and all discovery dates or, in the alternative, to allow the late filing of an expert designation, to be heard on January 26, 2024. On January 12, 2024, Defendants Tamara Johnson, Anthony Ray Johnson, and Sean Anthony Johnson (“Defendants”) filed an opposition.
Trial is currently scheduled for February 16, 2024.
PARTIES’ REQUESTS
Plaintiff requests that the Court continue the trial to May 20, 2024 and reopen discovery or, in the alternative, allow Plaintiff to file a late expert designation.
Defendants request that the Court deny the motion.
LEGAL STANDARD
A. Motion to continue trial
California Rules of Court, rule 3.1332(b), provides that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”
Under California Rules of Court, rule 3.1332(c), the Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. (Cal. Rules of Court, rule 3.1332(d).)
B. Motion to reopen discovery
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
A. Plaintiff’s motion to continue trial
Plaintiff asserts that the Court should continue the trial to allow Plaintiff to depose Tamara Johnson. (Motion p. 1 [“this motion to continue the trial is being sought to allow for the reopening of discovery to allow for [Tamara Johnson’s] deposition to take place”].) Plaintiff does not explain why he has not deposed Tamara Johnson since she appeared in the case in May 2021.
Plaintiff has not shown good cause for a continuance. The Court denies the request to continue the trial.
B. Plaintiff’s motion to reopen discovery and file late expert designation
Plaintiff asks the Court to reopen discovery to allow him to (1) depose Tamara Johnson and (2) file a late expert designation. (Motion p. 1 [“Further, Plaintiff’s counsel needs to reopen discovery to allow for the filing of an expert designation”].) As noted, however, Plaintiff has not explained why he did not previously depose Tamara Johnson. Therefore, the Court will not reopen discovery for this purpose.
Plaintiff relies on Code of Civil Procedure section 473, subdivision (b), to support his request to reopen discovery so he can file a late expert designation. Plaintiff argues that his counsel has submitted an affidavit of fault, requiring the Court to grant relief from the failure to file a timely designation. Plaintiff is mistaken.
“Because the expert witness statute provides its own procedures for relief from exclusion [of expert witnesses] [citation], relief cannot be obtained under [Code of Civil Procedure section 473, subdivision (b)] on the ground of ‘mistake, inadvertence, surprise, or excusable neglect,’ including the provision for mandatory relief upon filing an attorney ‘affidavit of fault.’ ” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 8:1731, p. 8J-39, citing Gotschall v. Daley (2002) 96 Cal.App.4th 479, 484 (Cal. Practice Guide).)
“A party who failed to exchange under [Code of Civil Procedure section 2034.260] on time (normally 50 days before trial) may seek leave to submit the required material on a later date.” (Cal. Practice Guide, supra, ¶ 8:1732, p. 8J-39, citing Code Civ. Proc., § 2034.710.) “Absent ‘exceptional circumstances,’ the motion for permission to file a tardy list must be made early enough to permit deposing the experts involved before the 15-day cut-off on expert witness depositions.” (Id., ¶ 8:1734, p. 8J-39, citing Code Civ. Proc., §§ 2034.710, subd. (b), 2024.030.)
Code of Civil Procedure section 2034.720 authorizes the Court to grant leave to submit tardy expert witness information “only if all of the following conditions are satisfied:
“(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.
“(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.
“(c) The court has determined that the moving party did all of the following:
“(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.
“(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.
“(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.
“(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.”
(Code Civ. Proc., § 2034.720; see Cal. Practice Guide, supra, ¶¶ 8:1737-8:1738.1, pp. 8J-40 to 8J-41.)
Plaintiff has not stated when he learned that his expert designation had not been filed. Therefore, he has not shown that he “[s]ought leave to submit the [expert witness] information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect” or “[p]romptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.” (Code Civ. Proc., § 2034.720, subds. (c)(2), (c)(3).)
In addition, although Plaintiff states that the parties have been unable to meet and confer, Plaintiff does not explain what efforts he has made to resolve these issues informally with Defendants. As a result, Plaintiff has not satisfied the requirements of Code of Civil Procedure section 2024.050, subdivision (a).
The Court denies the motion.
CONCLUSION
The Court DENIES Plaintiff Babak Adiban Rad’s motion to continue the trial.
The Court DENIES Plaintiff Babak Adiban Rad’s motion to reopen discovery.
The Court DENIES Plaintiff Babak Adiban Rad’s motion for leave to file a late expert designation.
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.