Judge: Lisa R. Jaskol, Case: 21STCV37727, Date: 2024-04-10 Tentative Ruling

Case Number: 21STCV37727    Hearing Date: April 10, 2024    Dept: 28

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

BACKGROUND 

On October 13, 2021, Plaintiff Movses Karapetyan (“Plaintiff”) filed this action against Defendants City of Pomona (“Defendant”) and Does 1-30 for statutory liability/dangerous condition of public property and premises liability. 

On November 22, 2021, Defendant filed an answer. 

At an informal discovery conference on July 7, 2023, the Court granted the parties’ oral stipulation to continue the trial and continued the trial from October 2, 2023 to January 31, 2024, with discovery and motion cut-off dates to trail the new trial date. 

On January 30, 2024, the Court granted the parties’ stipulated request to continue the trial from January 31, 2024 to April 25, 2024. The parties stipulated that all discovery would remain closed with the exception of any outstanding expert depositions that the parties had previously agreed on. The parties also stipulated that the Court’s order would not preclude any party from seeking further relief from the Court. 

On February 22, 2024, Defendant filed an ex parte application “for an order to reopen discovery and allow for a medical examination of plaintiff or [in the alternative] to shorten the time for the motion to reopen discovery and allow a physical examination of plaintiff.” Plaintiff filed an opposition. On February 23, 2024, the Court denied the ex parte application without prejudice.  (Defendant’s motion erroneously states that the Court denied the ex parte application with prejudice.) 

On February 28, 2024, Defendant filed a motion to reopen discovery and allow for physical examination of Plaintiff or alternatively continue trial with limited discovery, to be heard on April 10, 2024.  On March 26, 2024, Plaintiff filed an opposition.  On March 11, 2024, the Court denied Defendants’ ex parte application to advance the hearing on the motion. 

Trial is currently scheduled for April 25, 2024. 

PARTIES’ REQUESTS 

Defendant asks the Court to reopen discovery to permit Defendant to conduct a physical examination of Plaintiff or, in the alternative, continue the trial with limited 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.)  

DISCUSSION 

A.   Defendant’s motion to reopen discovery and Plaintiff’s opposition 

Defendant asks the Court to reopen discovery to allow Defendant to conduct Plaintiff’s physical examination because “plaintiff’s physical examination was not scheduled prior to the discovery cut-off period[.]”  (Motion pp. 1-2.) 

Defendant argues that (1) Plaintiff’s claimed injuries necessitate a physical examination (Motion p. 4), (2) Defendant was up front that it failed to notice Plaintiff’s physical examination within the discovery period (Motion p. 4), (3) Defendant has arranged with its expert to conduct Plaintiff’s physical examination on March 26, 2024, a date which will not interfere with the April 25, 2024 trial date, (4) Defendant served a notice of Plaintiff’s physical examination on February 23, 2024, (5) Defendant will suffer irreparable harm if it cannot conduct Plaintiff’s physical examination. 

Plaintiff opposes the motion, arguing that Defendant showed a lack of diligence in failing to schedule the physical examination before the discovery cut-off. 

B.   Analysis 

As noted, in exercising its discretion to grant or deny a motion to reopen discovery, the Court must consider any matter relevant to the request, including (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery and the reasons that the discovery was not completed, (3) any likelihood that permitting the discovery will prevent the case from going to trial on the date set or otherwise interfere with the trial calendar or result in prejudice to another party, and (4) the length of time that has elapsed between the date previously set for trial and the current trial date.  (Code Civ. Proc., § 2024.050, subd. (b).) 

Factor 1: Plaintiff does not dispute Defendant’s implicit assertions that conducting Plaintiff’s physical examination is “critical” and “essential” to defending the case.  (See Opposition p. 2.) This factor weighs in Defendant’s favor. 

Factor 2: Defendant does not dispute Plaintiff’s assertion that it failed to exercise diligence in scheduling Plaintiff’s physical examination before the discovery cut-off.  This factor weighs in Plaintiff’s favor. 

Factor 3:  Defendant argues that conducting Plaintiff’s physical examination on March 26, 2024 will not delay the trial scheduled to begin on April 25, 2024 and will not prejudice Plaintiff.  (Motion p. 5.)  However, Defendant does not elaborate on these points.  Plaintiff asserts that granting the motion would “disrupt the trial and discovery calendar” but provides no supporting argument.  (Opposition p. 3.)  This factor is neutral. 

Factor 4: The parties do not address this factor. 

The parties have not raised any other matters for the Court to consider in applying Code of Civil Procedure section 2024.050. 

The Court concludes that Defendant’s lack of diligence in scheduling Plaintiff’s physical examination, while troubling, should not prevent Defendant from conducting discovery which both parties agree is critical to Defendant’s ability to defend itself in this case.  Therefore, the Court grants Defendant’s motion and reopens discovery for the purpose of allowing Defendant to conduct Plaintiff’s physical examination. 

CONCLUSION 

The Court GRANTS Defendant City of Pomona’s motion to reopen discovery and reopens discovery for the purpose of allowing Defendant City of Pomona to conduct a physical examination of Plaintiff Movses Karapetyan.  The Court orders Plaintiff Movses Karapetyan to appear for a physical examination on March 26, 2024 or on another date to which the parties agree. 

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.