Judge: Lynne M. Hobbs, Case: 19STCV24798, Date: 2023-08-17 Tentative Ruling
PLEASE NOTE:
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Case Number: 19STCV24798 Hearing Date: December 20, 2023 Dept: 30
MARTIN PEREZ vs FOOD 4 LESS GM, INC., et al.
TENTATIVE
Plaintiff’s motion to reopen discovery is GRANTED. Plaintiff’s expert discovery as it pertains to the depositions at issue in this motion, ONLY, is reopened and shall be based on the January 22, 2024 trial date. Both parties’ request for sanctions is DENIED.
Legal Standard
Except as otherwise provided, “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 trial of the action.”¿ (Code Civ. Proc., § 2024.020(a).)¿ “[A]¿continuance¿or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to¿CCP¿section 2024.050.¿ (Code Civ. Proc., § 2024.020(b);¿Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568.)¿¿CCP¿section 2024.050 provides that “[o]n¿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.”¿ (Code Civ. Proc., § 2024.050(a).)¿
The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿ (Code Civ. Proc., § 2024.050(a), (b).)¿ In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including:¿¿
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.¿¿
(Code Civ. Proc., § 2024.050(b).)¿¿
A motion to reopen discovery pursuant to¿CCP¿section 2024.050 must be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.¿ (Code Civ. Proc., § 2024.050(a).)¿
Discussion
Plaintiff moves to reopen discovery, arguing that the request is necessary because Defendant is seeking to exclude 4/6 of Plaintiff’s experts from testifying at trial because they were not deposed before the prior October 23, 2023 trial date. Plaintiff argues that this was due to Defendant’s delay in seeking said depositions and providing only a 17-day window to depose Plaintiff’s six experts. Plaintiff has already provided dates to depose all his experts prior to the new trial date, some of which will occur before this motion is heard.
First, the Court finds that the meet and confer requirement has been met.
Next, the Court finds that the discovery is necessary. Plaintiff’s experts will provide crucial and necessary testimony for Plaintiff at trial including testimony on: (1) liability, (2) medical causation and treatment, and (3) future damages.
As to diligence, Plaintiff contends that he has been diligent, and that he designated his experts on September 1, 2023. Defendant did not reach out until 25 days later on September 26, 2023, seeking dates to depose Plaintiff’s experts, leaving a very short window before expert discovery closed. (The Court notes that each party states discovery closed on a different date—Defendant states it was October 6, 2023, while Plaintiff states it was October 9, 2023.) Plaintiff’s experts have provided available deposition dates, but they are all after October 23, 2023. Two of four depositions have already proceeded. Defendant requested January deposition dates for another expert, and Plaintiff has sent dates, but Defendant has not yet noticed them. The last expert deposition is scheduled for January 9, 2024.
Defendant argues in opposition that Plaintiff was not diligent. Plaintiff designated experts who had no intention of being prepared in a timely way to give deposition testimony and honor the October 23, 2023 trial date. This delay was used to attempt to get a trial continuance. Defendant argues this was deliberate delay. What was going to happen should Department 1 have found a court room for the parties? Plaintiff was not at all prepared for that outcome.
The Court finds that there is no evidence that Plaintiff lacked diligence. Defendant does not argue that Plaintiff designated his experts late. Thus, the issue is that Plaintiff’s experts’ depositions could not proceed prior to the October 23, 2023 trial date. However, Plaintiff argues that Defendant did not attempt to schedule the experts’ depositions until September 26, 2023, which is 25 days after Plaintiff sent notice of the designations on September 1, 2023. Thus, had Defendant sought these depositions earlier, this issue had a greater chance of being avoided. Moreover, there is no evidence that Plaintiff purposely delayed scheduling the depositions, and Defendant does not have any support for its argument that Plaintiff did. Further, Plaintiff has stated that he sought to obtain the deposition of his experts but was unable to secure available dates of all of them within the short window of time demanded by Defendant.
In any event, trial has been continued now. Regardless of the reason for the continuance, Plaintiff’s remaining experts’ depositions can now proceed. Thus, there is no reason to exclude these experts on this record where there is no evidence that Plaintiff lacked diligence and this discovery is necessary.
Neither party has addressed whether reopening expert discovery will require a trial continuance, but it appears it will not as all the experts are scheduled to be deposed.
As such, the relevant factors weigh in favor of granting this motion to reopen discovery.
Lastly, Defendant’s argument that it is debatable whether this Court retains jurisdiction over this case after it was sent back because no trial court was available is without any legal support. This case is currently assigned to this department. This Court undoubtedly retains jurisdiction to reopen discovery.
Sanctions
Code of Civil Procedure section 2024.050(c) states: “The court shall impose a monetary sanction… 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.”
Both parties’ request for sanctions is denied. Under Code of Civil Procedure section 2023.040, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Here, neither party has requested sanctions in the notice of motion or opposition. Thus, there is improper notice, and sanctions cannot be awarded against either party
Further, Defendant’s request for sanctions is also denied because Plaintiff’s motion was successful.