Judge: Lisa R. Jaskol, Case: 22STCV13905, Date: 2023-11-17 Tentative Ruling

Case Number: 22STCV13905    Hearing Date: November 17, 2023    Dept: 28

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

BACKGROUND 

On April 27, 2022, Plaintiffs Irena Portnoy and Igor Portnoy filed this action against Defendants Russell Friedman (“Friedman”) and Deborah Besner (“Besner”) for motor vehicle tort. 

On September 15, 2022, Defendants filed an answer. 

On September 7, 2023, the Court dismissed Defendant Igor Portnoy’s action with prejudice at Plaintiffs’ request. 

On October 20, 2023, Defendants filed a motion to reopen discovery to be heard on November 17, 2023. On November 3, 2023, Plaintiff Irena Portnoy (“Plaintiff”) filed an opposition. On November 8, 2023, Defendants filed a reply. 

Trial is currently scheduled for April 22, 2024. 

PARTIES’ REQUESTS 

Defendants request that the Court reopen fact discovery and expert discovery to follow the current trial date. 

Plaintiff requests that the Court deny the motion. 

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.” 

(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 

Defendants assert there is good cause to reopen discovery because (1) Plaintiff only recently disclosed two new treating doctors, (2) Plaintiff would not submit to a defense medical examination, and (3) Plaintiff disclosed additional medical care providers, treatment and medical costs after the close of discovery. 

Plaintiff argues that discovery was delayed due to Defendants’ lack of diligence.  It appears that Defendants conducted no discovery between September 2022 and August 2023.  Plaintiff also argues that reopening discovery will prejudice her because she may have to re-produce experts for depositions. 

It is undisputed that Defendants learned about some of Plaintiff’s medical providers only after the close of discovery.  Even if Defendants failed to exercise diligence throughout the case, they have shown the need for the additional discovery they seek.  Having considered the factors listed in Code of Civil Procedure section 2024.050, the Court finds there is good cause to reopen discovery and grants the motion.  However, Plaintiff may file a motion seeking to shift the costs of repeat depositions to Defendants if Plaintiff can show that Defendants' lack of diligence contributed to the need for a witness's second deposition.

CONCLUSION 

The Court GRANTS the motion of Defendants Russell Friedman and Deborah Besner to re-open discovery.  Fact and expert discovery are reopened and will trial the current trial date. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.