Judge: Michael E. Whitaker, Case: 19STCV11997, Date: 2023-04-14 Tentative Ruling

Case Number: 19STCV11997    Hearing Date: April 14, 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

Defendant Reins International California, Inc. dba Gyu-Kaku Japanese BBQ (Reins) moves to continue the trial, and all trial-related dates, which is currently set for May 10, 2023, to August 2, 2023.  Reins further filed a supplemental motion to reopen discovery pursuant to the Court’s March 17, 2023 order regarding Reins’ Ex Pare Application to Continue the Trial Date and All Related Dates.  Plaintiff Kristin Holman (Plaintiff) opposes the motion.  Reins replies.

ANALYSIS

Trial is currently set for May 10, 2023, which the Court set in its March 17, 2023 order regarding Reins’ Ex Parte Application to Continue the Trial Date and All Related Dates.  Based on the Court’s September 1, 2022, Minute Order, the fact discovery cutoff was September 1, 2022. (Code Civ. Proc., §§ 2024.020, subd. (a), 2024.030, 2016.060.)  Pursuant to a stipulation filed by the parties, the expert discovery deadline was continued to be based on a new trial date of February 21, 2023.  Thus, the expert discovery cutoff was February 11, 2023. (Code Civ. Proc., §§ 2024.020, subd. (a), 2024.030, 2016.060.) 

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).)

“Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.  Whether the parties have stipulated to the postponement is a relevant factor for consideration.  (See Code Civ. Proc., § 595.2, but see Lorraine v. McComb (1934) 220 Cal. 753, 756-757 [finding a stipulation to be merely “directory”].)  

Here, Reins seeks to reopen discovery, and continue trial and all trial related dates, to account for Reins previous attorney’s recent bankruptcy filing and the necessity for Reins’ new counsel to make up for prior counsel’s failure to conduct the necessary fact and expert discovery to properly defend Reins.  

Reins relies on the declaration of Reins’ counsel, S. Candice Shikai (Counsel).  Counsel avers that her office was first contacted regarding this case on or about March 1, 2023, by Reins’ insurer Sompo International.  (Declaration of S. Candice Shikai, ¶ 3.)  Reins’ prior counsel declared Chapter 11 bankruptcy on or about February 3, 2023 and is no longer providing any legal services to Reins.  (Declaration of S. Candice Shikai, ¶ 4.)  Reins subsequently attempted to settle the underlying case with Plaintiff, through Reins’ insurer, however the efforts were unsuccessful.  (Declaration of S. Candice Shikai, ¶ 5.)  Counsel officially substituted in as Reins’ counsel on March 9, 2023.  (Declaration of S. Candice Shikai, ¶ 6.)  Counsel explains that between March 1 and March 9, 2023 Reins discovered that its previous counsel had not taken any expert depositions, had only taken one percipient witness deposition, and further learned that all discovery cutoff dates had passed.  (Declaration of S. Candice Shikai, ¶¶ 6-7.)  Plaintiff’s counsel sent draft trial documents to Counsel on March 10, 2023, and Counsel argues Reins needs the trial date continued and fact and expert discovery reopened to allow Counsel time to review the file and assess what further discovery needs to be completed to properly ready this case for trial.  (Declaration of S. Candice Shikai, ¶¶ 11-12.)  Counsel has already identified that the percipient witnesses and Plaintiff’s seven retained experts need to be deposed.  (Declaration of S. Candice Shikai, ¶ 12.)

In Counsel’s Supplemental Declaration, advanced with Reins’ supplemental motion to reopen discovery, Counsel highlights Plaintiff’s representation in her opposition to Reins’ Ex Parte application, served on March 16, 2023,  that she is still treating for her injuries.  (Supplemental Declaration of S. Candice Shikai, ¶ 4.)  Counsel avers that this representation supports the necessity of Reins to depose Plaintiff a second time and further obtain all applicable medical, billing, and employment records not previously propounded by prior counsel.  (Supplemental Declaration of S. Candice Shikai, ¶¶ 4, 8.)  Counsel highlights that the case at issue is not simple in nature, as is reflected by Plaintiff’s designation of seven expert witnesses.   (Supplemental Declaration of S. Candice Shikai, ¶ 5.)  Counsel has also discovered that prior counsel did not subpoena Plaintiff’s employment records which are necessary to evaluate Plaintiff’s wage loss claims.  (Supplemental Declaration of S. Candice Shikai, ¶ 7.)

In opposition, Plaintiff asserts that Reins has failed to establish good cause to either continue trial or reopen discovery.  Plaintiff highlights that Reins should have known that prior counsel had closed its practice as of December 31, 2022, yet Reins did not substitute in new counsel until March 9, 2023.  (Declaration of Meylin P. Alfaro, ¶ 5, Exhibit 1.)  Plaintiff avers that Reins’ lack of diligence is the primary reason why Reins failed to either request or complet both non-expert and expert discovery.  (Declaration of Meylin P. Alfaro, ¶ 7.)  Plaintiff highlights that this is Reins’ fifth request for a trial continuance and Plaintiff has been litigating this case since 2019. 

In reply, Reins attests that before March 2023, as the client it had last received updates from its prior counsel regarding the underlying litigation on September 1, 2022.  (Declaration of Yumiko Bell, ¶ 3.)  Reins thus concludes that it should not take the blame or be punished for the actions, or lack thereof, of its prior counsel.

However, based on the four previous trial continuances and age of the underlying case spanning approximately four years, the Court finds Plaintiff would be severely prejudiced by a further trial continuance and reopening of discovery.  The Court further finds Reins has failed to show good cause for a trial continuance pursuant to California Rules of Court, rule 3.1332, or good cause to reopen discovery pursuant to Code of Civil Procedure 2024.050 in light of said risk of prejudice to Plaintiff.

CONCLUSION AND ORDER

Therefore, the Court denies Reins’ motion to continue trial and all trial related dates and further denies Reins’ supplemental motion to reopen discovery.  

The Clerk of the Court shall provide notice of the Court’s ruling.