Judge Lynne M. Hobbs, Case Number: 21STCV02766, Date: 2023-12-14 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 21STCV02766, Date: 2023-12-14 Tentative Ruling

Case Number: 21STCV02766 Hearing Date: March 4, 2024 Dept: 30

LEONARD E. POLAN, et al. vs ALLIED UNIVERSAL, et al.

TENTATIVE

Defendants’ Motions for Leave to Supplement/Augment Expert Designation and to Compel an Independent Medical Examination are DENIED.

Moving party is ordered to give notice.

Request for Judicial Notice

Defendants request judicial notice of: (1) the declaration of Matthew Biren, Esq., paragraphs 5 and 6, in support of Plaintiffs’ Ex Parte Application For An Order Shortening Time To Hear Plaintiffs’ Motion For Trial Preference, filed with this Court on February, 21, 2024; and (2) Declaration of Silviana Dumitrescu, Esq., paragraph 12, in support of Defendants’ Motion to Continue Trial, filed with this Court on November 16, 2023.

While the grant GRANTS the request, the Court does not take judicial notice of the truth of the matters within the filings.

Legal Standard

Code of Civil Procedure section 2034.710 provides:

(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date.

(b) A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

Code of Civil Procedure section 2034.720 provides:

The court shall grant leave to submit tardy expert witness information only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

Regarding relief under pursuant to these statutes, “the trial court shall not grant leave to submit late expert witness information if any of the statutory conditions are not satisfied.” (Cottini v. Enloe Medical Center (2014) 226 Cal.App.4th 401, 421.)

Discussion

I. Motion for Leave to Supplement/Augment Expert Designation

Defendants move for leave to file a late expert designation of an orthopedic expert. Defendants served a demand for expert exchange on December 7, 2023, with a specified designation date of December 27, 2023. On December 27, 2023, Plaintiffs served their designation, however, Defendant did not.

On January 8, 2024, Defendants served the Designation of Expert Witnesses. (Hunt Decl., ¶ 4, Exh. 2.) However, Defendants argue, due to excusable neglect, defense counsel did not designate an orthopedic expert. (Hunt Decl., ¶ 7-11.) Lead defense counsel has been preparing for back-to-back jury trials in two cases in February and March. Unfortunately, lead counsel was without his back up attorney on this matter due to a leave, though she has since returned on February 5, 2024. Then, counsel lost access to two attorneys of his team due to their unexpected departure at the very end of December 2023 immediately reducing his backup assistance. Further, lead defense counsel suffered two weeklong bouts with the flu to the point of significantly impaired function twice in the critical timeframe. (Hunt Decl., ¶ 9.)

Defense counsel reached out to Plaintiffs on January 8, 2024, when counsel realized he did not have an orthopedic expert to respond to Plaintiff’s orthopedic expert, to see if Plaintiff would agree to allow Defendants to further designate an orthopedic expert, but Plaintiff’s counsel did not agree. (Hunt Decl., ¶ 12; Exh. B). Defendants argue that Plaintiffs will not be prejudiced by the addition of an expert witness because there has not been a single expert witness deposed as of yet. (Hunt Decl., ¶ 13.) The proposed expert is available for deposition for deposition on a date convenient to the parties and that deposition has been offered to Plaintiff’s counsel. (Hunt Decl., ¶ 14.)

In opposition, Plaintiff argues that Defendant’s failure to designate an orthopedic surgeon was not the result of excusable neglect, but was rather intentional. Plaintiff sustained two substantial injuries – a traumatic brain injury and a rotator cuff shoulder injury. Discovery was responded to by Plaintiffs identifying the TBI and shoulder injuries and then the Polans were deposed in June 2022; both testified about both the TBI and shoulder injuries. Defendants were aware that Mr. Polan had treated with Kaiser Permanente for both injuries (they subpoenaed the records) and that Mr. Polan was also seen by Plaintiff’s neurologist expert Marissa Chang, M.D. A mediation was held in October 2022. Plaintiff Len Polan’s shoulder injury was extensively discussed in his mediation brief, which was shared with defense counsel.

Plaintiff points to an email by defense counsel in support of his argument that the failure to designate an orthopedic surgeon was intentional. Defense counsel stated: We had Polan examined by a neuropsychologist because based on Polan’s testimony, it was clear that his orthopedic complaints had resolved. His remaining complaints were cognitive in nature and related to the TBI. He only complained of residual pain in the shoulder, which is always anticipated after a shoulder injury, especially in a person of Mr. Polan’s age. (Biren Decl., Exh. 1.)

Plaintiff also argues that Defendant failed to seek leave to submit the information promptly after learning of the mistake, inadvertence, surprise or excusable neglect. Plaintiffs argue that Defendants knew about the failure to designate and orthopedic surgeon on December 27, 2023, when they received Plaintiffs’ designation. Plaintiff contends not acting for 40 days thereafter to file a supplemental designation is hardly prompt action.

Plaintiffs lastly argue that the statute also says that the motion is also only proper if the deposition of the proposed new expert can be completed timely. Here, the designation was not made until after the expert discovery cut-off date based on the February 15 trial date.

First, the discovery cut-off date has long passed. In fact, it had already passed when Defendants filed this motion. Code of Civil Procedure section 2034.710(b) provides that this motion shall be made a sufficient time in advance of the time limit for the completion of discovery to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Here, the deposition cannot be taken within the time limit for discovery prior to trial. While trial is currently set for March 15, 2024, on February 1, 2024, when the parties stipulated to continue trial to March 15, 2024, the Court stated discovery deadlines are not continued and remain related to the current trial date of February 15, 2024. This ex parte application/motion was filed on February 6, 2024, however, as noted above, the discovery cutoff had already passed by then. While the Court may permit the motion to be made exceptional circumstances, none have been presented here.

In addition, Defendants were required to seek leave to submit the information promptly after learning of the excusable neglect. Defendants argue that they learned about the neglect on January 8, 2024, but did not move for relief until February 6, 2024 with no explanation as to the delay. Further, Defendants did not serve the proposed expert witness list until February 5, 2024, almost a month later, even though Defendant counsel told Plaintiff it would be served by January 16, 2024. (Hunt Decl., Exh. 4.)

As a result, the motion is denied.

II. Motion to Compel IME

Defendant argues that Polan’s recent recommendation for right shoulder replacement surgery by Dr. Swarm is a material change in Polan’s condition warranting an orthopedic IME.

Pursuant to Code of Civil Procedure Section 2024.020, a party is entitled to have motions concerning discovery heard on or before the 15th day before the date initially set for the trial of the action. The instant motion to compel the IME of Plaintiff was filed on February 21, 2024. When the trial was continued for the fourth time, the parties stipulated and the Court ordered that all trial related dates would be based upon the new trial date of February 15, 2024. When the trial was again continued for the fifth time at the final status conference on February 1, 2024, the Court again ordered that all trial related dates were based on the February 15, 2024 trial date and would not be continued to the present trial date of March 15, 2024. (February 1, 2024 Minute Order.)

As discussed above, the discovery cutoff date has passed. As Plaintiff points out in the opposition, Defendant has not moved to reopen discovery or continue trial prior to filing this motion. In reply, Defendant argues it made a request for a 6-week trial continuance in its “ex parte application to advance the hearing on this motion, or in the alternative, to continue trial.” However, the request for a trial continuance was an alternative request to Defendant’s request to advance the hearing on this motion. The Court granted the initial request and advanced the hearing on this motion. As a result, the Court did not grant Defendants alternative request for a trial continuance on that date. Defendants now ask for a nunc pro tunc order continuing trial and reopening discovery. It appears Defendants are asking the Court to reconsider its order sua sponte, which the Court is not required to entertain because generally, the Court reconsiders on its own motion if there is an error. There is no error.

In any event, the Court has reviewed the ex parte application seeking this alternative request for a trial continuance, and Defendant has not analyzed the relevant factors under Code of Civil Procedure Section 2024.050 in order for the Court to issue an order to reopen discovery. 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.¿¿

Notably, Defendant has not addressed how it acted diligently, and the reasons why this discovery was not completed earlier. Defendant only argues that it has been informed for the first time on February 14, 2024 that Plaintiff is a candidate for right shoulder replacement surgery. However, Plaintiffs have provided plenty of evidence showing that Defendants knew about this injury from the onset of this case, and that Defendants had subpoenaed Plaintiff’s medical records, which indicated that Plaintiff’s treatment was not resolving his pain. (Biren Decl., Exhs. 1-10.) Further, Plaintiff’s counsel told defense counsel on September 19, 2022 that: “Enclosed is an appointment note from Dr. Tan of Kaiser regarding Len’s shoulder. Dr. Tan has advised Len that he is not a candidate for shoulder repair surgery. The only way he can avoid the constant pain he is in is via shoulder replacement surgery. (Biren Decl., Exh. 11.) As such, it should have been clear to Defendants that Plaintiff would need shoulder replacement surgery.

In reply, Defendants argue that Plaintiff’s counsel informed prior defense counsel who has now left the firm that Plaintiff is eligible for shoulder replacement surgery and that Plaintiff’s counsel never told the current handling attorney at the firm. However, simply because an attorney left the firm does not negate her lack of diligence in preparing the case for trial or somehow excuse that lack of diligence when another attorney takes over. Further, it is not Plaintiff’s counsel duty to inform every defense attorney at Defendant’s firm that works on the case all of the details of their own case. It is Defendant’s duty to adequately prepare.

In sum, in Defendants’ ex parte application, they have made no showing or argument that they were diligent, while Plaintiffs have offered evidence that Defendants were not diligent. Therefore, even if the Court were to reconsider its decision, on this record, it would not be in Defendants’ favor.

As a result, as it stands now, there is no motion to reopen discovery. Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1587-88 (“Here, the trial court's discretion to hear Pelton–Shepherd's motion to compel was governed by section 2024.020, which provided that (1) the last day for Pelton–Shepherd to have its motion to compel heard as a matter of right was October 31, 2005, and that (2) the postponement of the trial date did not “operate to reopen discovery proceedings” “[e]xcept as provided in Section 2024.050”—that is, except upon a successful motion for leave to reopen discovery.”)

Therefore, the motion to compel the IME is DENIED.

Conclusion

Based on the foregoing, Defendants’ Motions for Leave to Supplement/Augment Expert Designation and to Compel an Independent Medical Examination are DENIED.