Judge: Lisa R. Jaskol, Case: 21STCV34741, Date: 2023-12-07 Tentative Ruling

Case Number: 21STCV34741    Hearing Date: December 7, 2023    Dept: 28

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

BACKGROUND 

On September 21, 2021, Plaintiff Hilber Emerito Aguilar Tomas (“Plaintiff”) filed this action against Defendants Nathan A. Anslow (“Defendant”) and Does 1-50 for negligence. 

On May 11, 2022, Defendant filed an answer. 

On October 5, 2023, the Court denied Defendant's ex parte application to continue the trial to February 19, 2024.  The Court continued the trial to November 7, 2023 to give Defendant time to prepare for trial.  The Court denied the request to reopen discovery without prejudice. 

On October 13, 2023, Defendant filed a motion to reopen discovery to be heard on December 7, 2023. On November 22, 2023, Plaintiff filed an opposition. On November 29, 2023, Defendant filed a reply. 

On October 18, 2023, the Court denied Defendant's ex parte application to continue the trial to April 8, 2024. The Court also denied Plaintiff’s request for sanctions. 

On October 14, 2023, the Court granted Defendant’s ex parte application to continue the trial to March 27, 2024. 

Trial is currently scheduled for March 27, 2024. 

PARTIES’ REQUESTS 

Defendant requests that the Court reopen discovery to follow the current trial date. 

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 in part: 

“(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. . . ."

(Code Civ. Proc., § 2024.050, subds. (a), (b).) 

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 discovery to allow Defendant to subpoena a pre-accident MRI study as well as records from physicians who treated Plaintiff before the accident.  Defendant asserts that this discovery is relevant to Plaintiff’s prior low back injuries.  Defendant's counsel has submitted a meet and confer declaration. 

Defendant argues that he was diligent in pursuing discovery but Plaintiff, through “evasive and incomplete discovery responses,” failed to disclose the identity of pre-accident treatment providers who have relevant information about Plaintiff’s prior back injuries.  According to Defendant, Plaintiff’s evasive response to discovery – saying he did not remember – prevented Defendant from learning the identity of these treatment providers in time to subpoena their records before the discovery cut-off. 

Defendant also asserts that, despite serving several subpoenas for medical records beginning in June 2022, he did not receive any medical records until September 14, 2024.  These records contained the names of two of Plaintiff’s prior treatment providers, but the discovery cut-off date of September 18, 2023 has prevented Defendant from making use of this information.  If Plaintiff had disclosed the names of his prior treatment providers when Defendant asked for that information in 2022, Defendant argues, Defendant could have completed this discovery before the cut-off date. 

In response, Plaintiff argues that Defendant has been on notice of the prior back injury for approximately 18 months and could have obtained the medical records and prior MRI study from Plaintiff’s workers’ compensation case involving the prior injury.  Plaintiff also argues that Defendant was not diligent in pursuing discovery because, after issuing subpoenas for medical records, almost one year passed before Defendant’s counsel realized that the recipients had not served responses. 

The Court has weighed the factors listed in Code of Civil Procedure section 2024.050 and finds that it is appropriate to reopen discovery.  It is undisputed that information about Plaintiff’s prior back injury is relevant.  Defendant assures the Court that “there is no . . . danger” that reopening discovery will delay the trial because “[t]here is abundant time between now and [the March 27, 2024 trial date] to conduct and complete discovery into these prior treating physicians . . . .”  (Reply p. 3.)  And Defendant has been reasonably diligent in seeking information about Plaintiff’s prior injury. 

The Court grants the motion and reopens discovery, which will be based on the new March 27, 2024 trial date. 

CONCLUSION 

The Court GRANTS Defendant Nathan A. Anslow’s motion to reopen discovery.  Discovery and related dates will be based on the March 27, 2024 trial date. 

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.