Judge: Michael E. Whitaker, Case: 18STCV09421, Date: 2023-02-08 Tentative Ruling

Case Number: 18STCV09421    Hearing Date: February 8, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Cheri Moi (Plaintiff) sued Defendant Costco Wholesale Corporation (Defendant) based on a slip and fall in a warehouse owned and controlled by Defendant.  Defendant moves the Court for an order clarifying the Court’s November 1, 2022 order.  In the alternative Defendant requests that the Court re-open expert discovery for the limited purpose of allowing the parties to take depositions of expert witnesses.  Plaintiff opposes the motion.  Defendant replies.

Preliminarily, the Court notes that although Defendant has characterized the instant motion as a motion for clarification, Defendant cites to Code of Civil Procedure section 473, subdivision (d) in support.  Accordingly, the Court shall exercise its discretion to analyze Defendant’s motion as a motion to correct clerical mistakes in a past judgment or order, rather than a motion to clarify.

ANALYSIS

1. SECTION 473, SUBDIVISION (d)

Per Code of Civil Procedure section 473, subdivision (d), “[t]he court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Defendant seeks to alter the November 1, 2022 Court order to set the discovery-cut-off date for the already designated experts based on the new trial date.  The November 1, 2022 Court order rules as follows:

After reading and considering all moving documents, the court rules as follows: The Ex Parte Application to Continue Trial filed by Cheri Moi on 10/31/2022 is Granted.

Pursuant to the request of moving party, the Final Status Conference scheduled for 11/15/2022 is continued to 01/12/23 at 10:00 AM in Department 32 at Spring Street Courthouse.

Pursuant to the request of moving party, the Jury Trial - NFC scheduled for 11/29/2022 is continued to 01/31/23 at 08:30 AM in Department 32 at Spring Street Courthouse.

ALL DISCOVERY IS CLOSED EXCEPT FOR DISCOVERY RELATED TO THE RHIZOTOMY PROCEDURE TO BE PERFORMED BY VIKRAM SINGH, M.D.

PRE-TRIAL MOTION CUT OFF REMAINS IN EFFECT, EXCEPT FOR DISCOVERY MOTIONS RELATED TO RHIZOTOMY PROCEDURE TO BE PERFORMED BY VIKRAM SINGH, M.D.

NO FURTHER CONTINUANCE OF THE TRIAL ABSENT SUFFICIENT GOOD CAUSE.

(See Minute Order, November 1, 2022.)

In reviewing Defendant’s declaration in conjunction with the procedural history of the consolidated action as set forth above, Defendant fails to establish that it is entitled to relief under Section 473, subdivision (d).  First, Defendant does not demonstrate that there are clerical mistakes in the Judgment or Order.  Second, Defendant does not illustrate how the Judgment or Order is void as a matter of law

1. Reopen Expert Discovery

            Trial is currently set for March 21, 2023, which the Court set pursuant to Defendant’s most recent ex parte application for order to clarify the court’s ruling, or, alternatively to reopen expert discovery after new trial date.  (See December 9, 2022 Minute Order.)  Based on the Court’s December 9, 2022 Minute Order, the expert discovery cutoff date was November 14, 2022. 

In determining whether to reopen discovery, the court must consider the necessity of and reasons for the additional discovery, the diligence or lack thereof by the party seeking to reopen discovery in attempting to complete discovery prior to the cutoff, whether permitting the discovery will prevent the case from going forward on the trial date or will otherwise prejudice any party, and any past continuances of the trial date.  (See Code Civ. Proc., § 2024.050, subd. (b).)

Here, Defendant seeks to reopen discovery for the following reasons: (1) Defendant has, for the duration of this case, engaged in genuine, good-faith efforts to get expert discovery completed so that the parties may move forward to trial on the merits; and (2) there is no risk of prejudice to Plaintiff by allowing expert discovery on a limited basis to continue to a cut-off date based on the new trial date.

In opposition, Plaintiff avers to the following:

• On October 10, 2022, Costco served four notices of deposition for Cheri Moi’s four expert witnesses.  Each notice, however, was defective insofar as it did not comply with the notice requirements under C.C.P. §§ 1010.6, 2025.270(a), and California Rules of Court, Rules 2.250-2.259.  Accordingly, I served timely objections to each Deposition notice on October 14, 2022.

• A true and correct copy of the Objections that I served are collectively attached hereto as Exhibit #6. The absence of a valid notice of deposition gives Costco no legal right to insist on taking a deposition.

• Yet there was still plenty of time for Costco to re-notice the depositions in a timely manner.  Costco never did so.  As of the date of the four Objections (Ex #6), time was ticking for Costco to properly serve notice of the expert witness depositions.  As of October 14, the expert witness cut off was a month away – November 14, 2022 – giving Costco plenty of time to serve Notices correctly.

• Knowing that its deposition notices were untimely, Costco continued to dither.  On November 18, 2022 — 35 days after I served the original objections, and four days after expert witness discovery was closed — Costco served four more notices of deposition, to which I objected because they were untimely.

• Again, the absence of a valid Notice of Deposition did not give Costco any entitlement to take expert witness depositions.  The legal requirement to produce expert witnesses for deposition is triggered only by a valid Notice of Deposition.

 (Declaration of Michael L. Justice, ¶¶ 26-30.)

            In reply, Defendant argues Plaintiff’s failure to produce experts for deposition is unreasonable, because Plaintiff’s undue rigidity in refusing to produce experts based on de minimis errors in Costco’s deposition notices gives the appearance of gamesmanship.

Taking into consideration the strong public policy favoring adjudication of cases on their merits, the Court finds that Defendant has shown good cause for reopening discovery so both Plaintiff and Defendant can complete necessary expert witness depositions. 

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to reopen expert discovery only for the purpose of scheduling and completing expert witness depositions, and orders all expert witness depositions to be completed on or before March 10, 2023.  Further, the Court orders counsel for Plaintiff and Defendant to meet and confer forthwith to facilitate the scheduling of such expert witness depositions. 

Defendant shall give notice of the Court’s ruling and file a proof of service of such.