Judge: Lisa R. Jaskol, Case: 22STCV32776, Date: 2024-06-03 Tentative Ruling
Case Number: 22STCV32776 Hearing Date: June 3, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On October 6, 2022, Plaintiff Kathryn Dovel (“Plaintiff”) filed this action against Defendants The Kroger Co. dba Ralphs and Does 1-50 for personal injuries and negligence.
On October 27, 2022, Defendant Alpha Beta Company dba Ralphs (erroneously sued as The Kroger Co. dba Ralphs) (“Defendant”) filed an answer.
On March 22, 2024, Defendant filed a motion to continue the trial and to permit a neuropsychologist medical examination, to be heard on April 16, 2024. On April 3, 2024, Plaintiff filed an opposition to the motion to permit an examination. On April 9, 2024, Defendant filed a reply. The Court continued the hearing to June 3, 2024.
On March 26, 2024, in response to Defendant’s ex parte application, the Court continued the trial to July 2, 2024 and reopened fact discovery and related dates for the sole purpose of Plaintiff's possible neuropsychological examination and the hearing on Defendant's motion for an order permitting Defendant to conduct that examination.
Trial is currently scheduled for July 2, 2024.
PARTIES’ REQUESTS
Defendant asks the Court to continue the trial, continue or reopen discovery, and grant leave to conduct a neuropsychiatric examination of Plaintiff.
Plaintiff asks the Court to deny the motion.
LEGAL STANDARD
A. Motion to continue trial
California Rules of Court, rule 3.1332, provides:
“(a) Trial dates are firm
“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.
“(b) Motion or application
“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.
“(c) Grounds for continuance
“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:
“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
“(2) The unavailability of a party because of death, illness, or other excusable circumstances;
“(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
“(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
“(5) The addition of a new party if:
“(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or
“(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;
“(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
“(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.
“(d) Other factors to be considered
“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:
“(1) The proximity of the trial date;
“(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;
“(3) The length of the continuance requested;
“(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
“(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
“(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;
“(7) The court's calendar and the impact of granting a continuance on other pending trials;
“(8) Whether trial counsel is engaged in another trial;
“(9) Whether all parties have stipulated to a continuance;
“(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and
“(11) Any other fact or circumstance relevant to the fair determination of the motion or application.”
(Cal. Rules of Court, rule 3.1332.)
B. Motion to continue or reopen discovery
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.)
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.”
C. Motion for leave to conduct physical or mental examination
Code of Civil Procedure section 2032.020 provides in part:
“(a) Any party may obtain discovery, subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by means of a physical or mental examination of (1) a party to the action, (2) an agent of any party, or (3) a natural person in the custody or under the legal control of a party, in any action in which the mental or physical condition (including the blood group) of that party or other person is in controversy in the action. . . .”
(Code Civ. Proc., § 2032.020, subd. (a).)
Code of Civil Procedure section 2032.220 provides:
“(a) In any case in which a plaintiff is seeking recovery for personal injuries, any defendant may demand one physical examination of the plaintiff, if both of the following conditions are satisfied:
“(1) The examination does not include any diagnostic test or procedure that is painful, protracted, or intrusive.
“(2) The examination is conducted at a location within 75 miles of the residence of the examinee.
“(b) A defendant may make a demand under this article without leave of court after that defendant has been served or has appeared in the action, whichever occurs first.
“(c) A demand under subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the physician who will perform the examination.
“(d) A physical examination demanded under subdivision (a) shall be scheduled for a date that is at least 30 days after service of the demand. On motion of the party demanding the examination, the court may shorten this time.
“(e) The defendant shall serve a copy of the demand under subdivision (a) on the plaintiff and on all other parties who have appeared in the action.”
(Code Civ. Proc., § 2032.220.)
Code of Civil Procedure section 2032.310 provides:
“(a) If any party desires to obtain discovery by a physical examination other than that described in Article 2 (commencing with Section 2032.210), or by a mental examination, the party shall obtain leave of court.
“(c) Notice of the motion shall be served on the person to be examined and on all parties who have appeared in the action.”
(Code Civ. Proc., § 2032.310.)
Code of Civil Procedure section 2032.320 provides:
“(a) The court shall grant a motion for a physical or mental examination under Section 2032.310 only for good cause shown.
“(b) If a party stipulates as provided in subdivision (c), the court shall not order a mental examination of a person for whose personal injuries a recovery is being sought except on a showing of exceptional circumstances.
“(c) A stipulation by a party under this subdivision shall include both of the following:
“(1) A stipulation that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.
“(2) A stipulation that no expert testimony regarding this usual mental and emotional distress will be presented at trial in support of the claim for damages.
“(d) An order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.
“(e) If the place of the examination is more than 75 miles from the residence of the person to be examined, an order to submit to it shall be entered only if both of the following conditions are satisfied:
“(1) The court determines that there is good cause for the travel involved.
“(2) The order is conditioned on the advancement by the moving party of the reasonable expenses and costs to the examinee for travel to the place of examination.”
(Code Civ. Proc., § 2032.320.)
DISCUSSION
A. Defendant’s motion for leave to conduct a neuropsychiatric examination
Defendant asks for leave to conduct a neuropsychiatric examination of Plaintiff, arguing that Plaintiff’s own expert neuropsychiatrist has already examined him.
Plaintiff opposes the motion, arguing Defendant improperly designated its expert neuropsychiatrist after the deadline to exchange expert information passed. Plaintiff asks the Court to deny Defendant’s motion and exclude Defendant’s expert under Code of Civil Procedure section 2034.300, which provides:
“Except as provided in Section 2034.310 and in Articles 4 (commencing with Section 2034.610) and 5 (commencing with Section 2034.710), on objection of any party who has made a complete and timely compliance with Section 2034.260, the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably failed to do any of the following:
“(a) List that witness as an expert under Section 2034.260.
“(b) Submit an expert witness declaration.
“(c) Produce reports and writings of expert witnesses under Section 2034.270.
“(d) Make that expert available for a deposition under Article 3 (commencing with Section 2034.410).”
(Code Civ. Proc., 2034.300.)
A party who seeks to exclude another party’s expert under
Code of Civil Procedure section 2034.300 must make “a formal objection to the opposing
expert testimony . . . . The objection can be made by motion in limine, or can
be raised when the expert takes the stand.”
(L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before
Trial (Rutter 2023) ¶ 8:1709, pp. 8J-29 to 8J-30.)
The Court finds that Plaintiff did not make a formal objection to Defendant's expert by raising the allegedly improper designation in
opposition to Defendant’s motion. (In contrast, Plaintiff has filed a motion in limine which addresses the issue.) Therefore, for purposes of this motion only, the Court declines to
consider Plaintiff’s argument that Defendant improperly designated its expert
neuropsychologist.
Nonetheless, the Court denies Defendant’s motion for leave to conduct Plaintiff’s neuropsychiatric examination. “A motion for an examination under [Code of Civil Procedure section 2032.310,] subdivision (a) shall specify the time, place, manner, conditions, scope, and nature of the examination, as well as the identity and the specialty, if any, of the person or persons who will perform the examination. The motion shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2032.310, subd. (b).)
Defendant’s motion does not specify “the time, place, manner, conditions, scope, and nature of the examination” or the identity of the person who will perform the examination. Without this information, the Court cannot grant the motion.
B. Defendant’s motion to continue trial and reopen discovery
Defendant asks the Court to continue the trial to a date in September 2024 and to order that discovery deadlines will be based on the new trial date. According to Defendant, the parties are not ready for trial, Defendant’s lead counsel has a busy trial schedule, Defendant has learned that Plaintiff’s neuropsychiatric expert examined Plaintiff, and Defendant’s neuropsychiatric expert believes that a defense medical examination is needed to evaluate the nature and extent of Plaintiff’s alleged injuries.
Defendant
argues that it will suffer prejudice if the Court denies the continuance
request, but Plaintiff will suffer no prejudice if the Court grants the
continuance request.
The Court has denied Defendant's request for leave to conduct Plaintiff's neuropsychiatric examination. However, based on the other considerations listed above, the
Court finds good cause and continues the trial for 30 days or to the next available
date. The final status conference,
discovery, and related dates will be based on the new trial date. The parties should not expect additional
continuances absent a compelling showing of good cause.
CONCLUSION
The Court DENIES the motion for leave to conduct Plaintiff’s neuropsychiatric examination filed by Defendant Alpha Beta Company dba Ralphs (erroneously sued as The Kroger Co. dba Ralphs).
The Court GRANTS IN PART the motion to continue trial filed by Defendant Alpha Beta Company dba Ralphs (erroneously sued as The Kroger Co. dba Ralphs). The Court continues the trial for 30 days or to the next available date. The Court will provide the new trial date at the June 3, 2024 hearing. The final status conference, discovery, and related dates will be based on the new trial date. In all other respects, the Court DENIES the motion.
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.