Judge: Lisa R. Jaskol, Case: 21STCV37727, Date: 2024-12-03 Tentative Ruling
Case Number: 21STCV37727 Hearing Date: December 3, 2024 Dept: 28
Having considered the moving, opposition, and reply 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 prevent any party from seeking further relief from the Court.
On February 28, 2024, Defendant filed a motion to reopen discovery and allow for a physical examination of Plaintiff or alternatively continue trial with limited discovery, to be heard on April 10, 2024. Defendant asserted that it had arranged for its expert, Dr. Barry I. Ludwig, to conduct Plaintiff’s physical examination and the examination would not delay the upcoming trial. Plaintiff opposed the motion, arguing that Defendant showed a lack of diligence in failing to schedule the physical examination before the discovery cut-off.
On April 10, 2024, the Court granted Defendant’s motion to reopen discovery. The Court concluded 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. The Court reopened discovery for the purpose of allowing Defendant to conduct a physical examination of Plaintiff and ordered Plaintiff to appear for a physical examination on March 26, 2024 or on another date to which the parties agreed. The Court’s April 10, 2024 order was premised on the understanding that Defendant had already designated an expert, Dr. Barry I. Ludwig, who would examine Plaintiff.
On April 11, 2024, Defendant noticed Plaintiff’s physical examination, not with Dr. Ludwig but with Dr. Ronald Kvitne on April 15, 2024. Defendant accompanied the notice with a meet and confer letter asking Plaintiff to agree to allow Defendant to augment its expert witness list with Dr. Kvitne. Plaintiff’s counsel refused to allow Plaintiff to attend the examination by Dr. Kvitne and refused to stipulate to allow Defendant to augment its expert witness list to include Dr. Kvitne.
On April 12, 2024, Defendant filed a motion for issue, evidentiary, and monetary sanctions against Plaintiff or his attorneys, to be heard on May 29, 2024. On May 15, 2024, Plaintiff filed an opposition.
On April 17, 2024, the Court denied Defendant’s ex parte application to continue the trial until after the hearing on Defendant’s motion to augment its expert witness list to include Dr. Kvitne. The Court observed that, in refusing to allow Dr. Kvitne to conduct Plaintiff’s physical examination, Plaintiff had not violated the Court’s April 10, 2024 order because the Court did not order Plaintiff to stipulate to augment Defendant’s expert witness list with Dr. Kvitne.
On April 25, 2024, the Court found the case was trial-ready and referred the case to Master Calendar Department 1 for a trial assignment. At the direction of Department 1, the Court continued the trial to May 14, 2024. The Court observed that all motion and discovery deadlines were closed.
On May 14, 2024, based on counsel’s stipulation, the Court continued the trial to June 6, 2024. On July 9, 2024, based on counsel’s stipulation, the Court continued the trial to August 5, 2024. On August 5, 2024, no courtrooms were available for trial. The Court continued the trial to August 26, 2024.
On August 23, 2024, the Court granted Defendant’s ex parte application in part and continued the trial to November 26, 2024 based on the death of Defendant’s counsel. The Court denied the request to extend discovery deadlines.
On September 13, 2024, Defendant filed a motion to augment or amend its expert witness list. The motion was set for hearing on November 13, 2024.
On September 30, 2024, Defendant filed a motion “to re-open discovery to augment or amend its expert witness list and proceed with court order[ed] physical exam of Plaintiff.” (Capitalized in original.) The motion was set for hearing on December 3, 2024. On November 18, 2024, Plaintiff filed an opposition. On November 22, 2024, Defendant filed a reply.
Trial is currently scheduled for February 3, 2025.
PARTIES’ REQUESTS
Defendant 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.)
DISCUSSION
Defendant argues that it should have the opportunity to correct errors made by its previous counsel, whose untimely death caused the Court to continue the trial. The errors included the failure to seek to amend Defendant’s expert witness list to include the doctor who Defendant now wishes to examine Plaintiff.
The
Court has considered the factors listed in Code of Civil Procedure section
2024.050 and declines to exercise its discretion to reopen discovery. Defendant has not shown sufficient diligence to warrant the Court's exercise of discretion.
CONCLUSION
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.