Judge: Michael E. Whitaker, Case: 19STCV42602, Date: 2023-04-11 Tentative Ruling

Case Number: 19STCV42602    Hearing Date: April 11, 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

Plaintiff Sophia Velasco (Plaintiff) sued Defendants George Mirabal and Elizabeth Mirabal (collectively, Defendants) based on a motor vehicle accident.  Plaintiff moves to re-open expert discovery to permit Plaintiff the opportunity to depose Defendants’ expert witnesses Philip S. Wang MSME and Jeffrey I. Korcheck M.D.  Defendants oppose the motion.

On March 14, 2023, the original hearing date for the instant motion, the Court found that Plaintiff did not meet and confer with Defendants in good faith before filing her motion to reopen discovery.  As such, the Court ordered Plaintiff and Defendants to meet and confer in an effort to informally resolve the current discovery dispute.  The Court further ordered Plaintiff to file and serve a supplemental declaration on or before March 28, 2023 addressing her attempt to meet and confer with Defendants, and Defendants to file and serve a supplement declaration on or before April 4, 2023 addressing Plaintiff’s attempt to meet and confer with Defendants.  Finally, the Court ordered Plaintiff to give notice of the Court’s orders and file a proof of service of such.

On March 29, 2023, Plaintiff filed and served her declaration regarding her meet and confer efforts with Defendants.  Counsel for Plaintiff, Jonathan D. Roven (Roven), states:

·         First, I apologize that this declaration is a day late. I was in a mediation and got caught up with other matters afterward yesterday.

·         I attempted to contact Stephen Hsu. We spoke on the phone. He basically placed a condition that I pay cancellation fees for both of his experts for him to provide dates. He said for me to pay the cancellation fees and he’ll provide dates “tomorrow.” He admitted to having no legal authority for this. I told him this was sanctionable conduct, but he would not back down.

·         We engaged in some back and forth emails, but he still would not provide dates.

·         A couple days ago, he brings up for the first time regarding why I canceled the depositions in the first place, and tried to bring up other issues to make it seem like that was what we were originally discussing. These tactics are simply in bad faith in my opinion. The issue is simple, that Plaintiff needs to take the depositions of the experts. There is so much time that has been spent on this issue and it is simply causing unnecessary efforts when these depositions simply need to get done to prepare for trial.

·         Attached hereto is a true and correct copy of the emails.

(Declaration of Jonathan D. Roven, ¶¶ 2-6.)

On April 3, 2023, Defendants filed and served their declaration in response.  First, Defendants highlight that Plaintiff failed to comply with the Court’s March 14, 2023, order by filing her declaration a day late, and further by never serving Defendants notice of the Court’s March 14, 2023, orders continuing the instant hearing.  (Declaration of Stephen Hsu, ¶ 2.)  Next, Defendants contend that Plaintiff’s meet and confer efforts focused on scheduling expert witness depositions, rather than the matter at issue in the instant motion, reopening discovery.  (Declaration of Stephen Hsu, ¶ 3.) Defendants specify that Plaintiff failed to discuss whether she had satisfied the requirements to reopen discovery under Code of Civil Procedure section 2024.050, provide a reasonable explanation for the failure to timely complete expert witness discovery at the outset, or explain why she had failed to exercise due diligence in eventually seeking relief.  (Declaration of Stephen Hsu, ¶ 5.)

After review of the emails attached to both Plaintiff and Defendants’ declarations documenting the parties meet and confer efforts, the Court agrees with Defendants that Plaintiff’s insistence that Defendants provide expert witness deposition dates skirts the preliminary and more pressing issue of whether Plaintiff has adequate reasons for reopening discovery.  (See Declaration of Jonathan D. Roven; see also Declaration of Stephen Hsu, Exhibit 1.)  The Court notes as it did in its March 14, 2023, order that Plaintiff’s meet and confer efforts do not address any of the arguments that Plaintiff makes in her motion to reopen discovery, and thus finds that Plaintiff has failed to meet and confer in good faith. 

Additionally, Defendants request monetary sanctions pursuant to Code of Civil Procedure section 2023.020, for Plaintiff failing to make a “reasonable and good faith attempt” to meet and confer.  Failure to meet and confer constitutes abuse of the discovery process and monetary sanctions may be imposed for failure to meet and confer even if the party prevails on the merits. (Code of Civ. Proc. §§ 2023.010, subd. (i) [failing to confer in a reasonable and good faith attempt to resolve informally any dispute concerning discovery constitutes a misuse of discovery], 2023.020 [“Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct”].)  The Court grants Defendants’ request for monetary sanctions for the foregoing reasons.  Accordingly, the Court will impose monetary sanctions against Plaintiff and Plaintiff’s counsel of record, Jonathan D. Roven, Britanie A. Crippen, and Jonny Law, in the amount of $640.68, which represents four hours of attorney time to prepare the opposition and supplemental declaration, and attend the hearings at $160.17 per hour.

Accordingly, the Court denies Plaintiff’s motion to reopen discovery for failure to meet and confer in good faith as required by the Discovery Act and the Court’s March 14, 2023 order.

Further, the Court orders Plaintiff and Plaintiff’s counsel of record, Jonathan D. Roven, Britanie A. Crippen, and Jonny Law, PC, jointly and severally, to pay $640.68 in monetary sanctions to Defendants, by and through Defendants’ counsel.

Plaintiff shall give notice of the Court’s orders and file a proof of service of such.