Judge: Lisa R. Jaskol, Case: 21STCV40202, Date: 2023-07-11 Tentative Ruling
Case Number: 21STCV40202 Hearing Date: July 11, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On November 2, 2021, Plaintiff Peter Zimmermann (“Plaintiff”) filed this action against Defendants Boris Patronoff (“Boris”) and Laura Vanessa Patronoff (“Laura”) for general negligence and premises liability.
On December 30, 2021, Defendants filed a general denial.
On April 11, 2023, the Court granted Defendants’ ex parte application to continue the trial but ordered that discovery deadlines would continue to be based on the previous May 2, 2023 trial date.
On June 15, 2023, Defendants filed a motion to reopen discovery to be heard on July 11, 2023. On June 27, 2023, Plaintiff filed an opposition. On July 5, 2023, Defendants filed a reply.
Trial is currently scheduled for September 26, 2023.
PARTIES’ REQUESTS
Defendants request that the Court re-open discovery to allow them to take Plaintiff’s independent medical examination (IME).
Plaintiff asks that the Court not re-open general discovery but asks the Court to extend expert discovery because the parties previously agreed to extend expert discovery.
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.”
DISCUSSION
Defendants ask the Court to re-open discovery to allow them to conduct Plaintiff’s medical exam. Defendants argue the discovery deadline was extended under Code of Civil Procedure section 599, subdivision (a) when the Court continued the trial date. Section 599 provides:
“Notwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitration date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines are extended for the same length of time as the continuance or postponement of the trial date.”
As noted, on April 11, 2023, the Court ordered that discovery deadlines would continue to be based on the previous May 2, 2023 trial date. This order triggered the “otherwise ordered” exception to section 599, subdivision (a). Therefore, section 599 does not support Defendants’ request to reopen discovery.
Defendants also argue the Court should reopen discovery under Code of Civil Procedure section 2024.050 (erroneously cited as Code of Civil Procedure section 2016.040). Defendants assert that, at Plaintiff’s deposition on July 27, 2022, he denied future care and “[a]t no time between July 2022 and March 2023 did Plaintiff ever inform Defendants that he was seeking additional treatment, nor would he require another surgery.” (Motion, p. 4.) According to Defendants, they first learned that Plaintiff had returned to treatment and would require additional surgery on March 8, 2023, during the deposition of Plaintiff’s treating surgeon, Dr. Dellamaggiora. (Motion, p. 4.)
Yet by their own account, Defendants did not attempt to schedule Plaintiff’s IME until April 3, 2023, almost one month after Dr. Dellamaggiora’s deposition and one day after the discovery cut-off.
In addition, Plaintiff’s opposition asserts that on November 8, 2022, Plaintiff served a formal demand letter and attached a report from Dr. Applebaum recommending future care. (Lugo Decl. ¶ 5.) Dr. Applebaum, a plastic and reconstructive surgeon, recommended the following to improve the appearance of Plaintiff’s scars: 1. Revision of the 2.5 cm forehead scar and fat grafting which will include IV sedation. The fee is $9500. 2. Revision of the left elbow scar with fat grafting which will be with IV sedation. The cost is $7,000 x 3 treatments for a total of $21,000. Total plastic surgery future care costs: $30,500.00. (Exhibit 3 to Lugo Decl.) Defendants do not dispute that they received this letter.
Having weighed the factors listed in Code of Civil Procedure section 2024.050, the Court exercises its discretion to deny Defendants' motion to reopen discovery to allow Defendants to conduct Plaintiff’s IME. The Court also denies Plaintiff's request to re-open expert discovery because it is not clear from the parties' filings whether the parties previously agreed to extend the expert discovery cutoff.
CONCLUSION
The
motion of Defendants Boris Patronoff and Laura Vanessa Patronoff’s to re-open discovery
for the purpose of taking Plaintiff’s IME is DENIED.
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.