Judge: Robert B. Broadbelt, Case: 19STCV38890, Date: 2023-08-30 Tentative Ruling

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Case Number: 19STCV38890    Hearing Date: November 27, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Plaintiffs Jason J. Emer, M.D., Professional Corporation and Jason J. Emer, M.D.

RESPONDING PARTY:       Unopposed

(1)   Motion for Leave to File Second Amended Complaint

(2)   Motion to Continue Trial and Discovery Cutoff Dates

MOVING PARTY:                Plaintiff Jason J. Emer, MD, Professional Corporation    

RESPONDING PARTY:       Defendant Exod Arch Inc.

(3)   Motion to Compel Deposition of Exod Arch Inc.’s Person Most Qualified

The court considered the moving papers filed in connection with (1) the motion for leave to file a second amended complaint, and (2) the motion to continue trial and discovery cutoff.  No oppositions to those motions were filed.  

The court considered the moving, opposition, and reply papers filed in connection with the motion to compel the deposition of Exod Arch Inc.’s person most knowledgeable.

EVIDENTIARY OBJECTIONS

The court sustains plaintiff Jason J. Emer, M.D., Professional Corporation’s evidentiary objections to the “Declaration of Dee Rodrigo in Support of Exod Arch Inc.’s Opposition to Jason J. Emer, MD, P.C.’s Motion to Compel the Deposition of Exod Arch Inc.’s Person(s) Most Knowledgeable,” filed on November 9, 2023, in its entirety, because the declaration (1) is incomplete; (2) is not dated; and (3) is not signed.  (Code Civ. Proc., § 2015.5; ViaView, Inc. v. Retzlaff (2016) 1 Cal.App.5th 198, 217 [declaration not signed under penalty of perjury under the laws of the State of California as required by section 2015.5 “had no evidentiary value”]; Rodrigo Decl., ¶¶ 8, 19, 27 [leaving blanks]; Rodrigo Decl., p. 7:16-21 [leaving blank the date of execution and signature line].)

The court rules on plaintiff Jason J. Emer, M.D., Professional Corporation’s evidentiary objections to the declaration of Maria Plumtree as follows:

Objections Nos. 35, 37-38, and 42-45 are sustained.

Objections Nos. 36 and 39-41 are overruled.

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

Plaintiffs Jason J. Emer, M.D., Professional Corporation (“Emer Corp.”) and Jason J. Emer, M.D. (collectively, “Plaintiffs”) move the court for an order granting them leave to file a Second Amended Complaint (1) to clarify their allegations regarding an agreement between Emer Corp. and the defendants, (2) to add an additional count against defendant Exod Arch Inc. for breach of written agreement, and (3) to revise other related allegations.  (Segal Decl., ¶¶ 11-13.)   

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect . . . .  The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars . . . .”¿ (Code Civ. Proc., §¿473, subd. (a)(1).)¿ “This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.”¿ (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)¿ 

The court finds that (1) it is in furtherance of justice to allow Plaintiffs to amend their complaint to add a new count for breach of written agreement and to revise other related allegations, and (2) the defendants in this action have not opposed this motion, and therefore have not shown that they will be unduly prejudiced by the amendment.  The court therefore grants Plaintiffs’ motion.  (Code Civ. Proc., § 473, subd. (a)(1); Kittredge Sports Co., supra, 213 Cal.App.3d at p. 1047.)

MOTION TO CONTINUE TRIAL AND DISCOVERY CUTOFF DATES

Plaintiffs move the court for an order continuing the trial and related discovery cutoff dates in this matter from February 7, 2024, to a date in June 2024.  Plaintiffs move for this relief on the grounds that they have filed several discovery motions, some of which are still pending, and Plaintiffs have not been able to complete depositions.

The court finds good cause to order a short continuance of trial because (1) Plaintiffs have presented evidence showing their excused inability to obtain essential testimony, documents, and other material evidence despite diligent efforts, and (2) the court has granted, as set forth above, Plaintiffs’ motion for leave to file their proposed Second Amended Complaint, which represents a significant change in the status of the case.  (Cal. Rules of Ct., rule 3.1332, subds. (c)(6), (c)(7); Segal Decl., ¶¶ 4-5, 8, 10-13, 19-23.)  The court has also considered the relatively short length of the continuance requested and the interests of justice in continuing trial.  (Cal. Rules of Ct., rule 3.1332, subds. (d)(3), (d)(10).)  

The court therefore grants Plaintiffs’ motion.

MOTION TO COMPEL THE DEPOSITION OF EXOD ARCH INC.’S PERSON MOST QUALIFIED

Emer Corp. moves the court for an order (1) compelling the deposition of the person most qualified for defendant Exod Arch Inc. (“Exod Arch”) on two dates certain, (2) compelling Exod Arch to produce documents responsive to Requests for Production of Documents, numbers 89-93, as set forth in the Notice of Deposition, and (3) awarding monetary sanctions in favor of Emer Corp. and against Exod Arch in the amount of $8,986.

Emer Corp. has presented evidence (1) showing that, on August 31, 2023, it served its Notice of Deposition of Exod Arch’s person most qualified for a deposition date of September 28, 2023; (2) Exod Arch served an objection on September 26, 2023 on the ground that its person most qualified, defendant Dee Rodrigo (“Rodrigo”) was unavailable for deposition due to health issues; and (3) Rodrigo, as Exod Arch’s person most qualified, did not appear for deposition on September 28, 2023.  (Segal Decl., Ex. C [Notice of Deposition]; Segal Decl., ¶ 7 [describing September 26, 2023 objection] Segal Decl., Ex. G [Certificate of Nonappearance].)  The court, however, notes that Plaintiff has shown that Rodrigo’s counsel produced to Emer Corp. a note recommending that Rodrigo (1) be excused from work until October 9, 2023, and (2) not sit or stand for more than 1 hour at a time.  (Segal Decl., Ex. E.) 

In opposition, Exod Arch asserts that although Rodrigo is willing to sit for deposition, he cannot commit to a deposition date at this time because he suffers from various medical conditions and must undergo and recover from hernia surgery.  (Opp., pp. 2:12-16, 5:1-8.)  However, Exod Arch has not submitted any competent evidence showing that Rodrigo has a medical condition or will be undergoing surgery that prevents him from participating in a deposition as Exod Arch’s person most qualified.  Thus, the court finds that Exod Arch has not met its burden to show that it cannot produce a person most qualified in response to plaintiff Emer Corp.’s Notice of Deposition. 

The court therefore grants Emer Corp.’s motion to compel Exod Arch to produce at the deposition of Exod Arch its person most qualified to testify on its behalf as to the categories set forth in the Notice of Deposition served on Exod Arch on August 31, 2023.  (Code Civ. Proc., § 2025.450, subd. (a).) 

            The court grants Emer Corp.’s motion to compel Exod Arch to produce the documents responsive to requests for production numbers 89-93.

The court finds that the circumstances presented, including the note from Dr. Obeng recommending that Rodrigo be excused from work obligations until October 9, 2023, make the imposition of sanctions unjust and therefore denies Emer Corp.’s request for monetary sanctions against Exod Arch.  (Code Civ. Proc., § 2025.450, subd. (g)(1); Segal Decl., Ex. E.)

ORDER

The court grants plaintiffs Jason J. Emer, M.D., Professional Corporation and Jason J. Emer, M.D.’s motion for leave to file second amended complaint.

The court orders plaintiffs Jason J. Emer, M.D., Professional Corporation and Jason J. Emer, M.D. to file the proposed Second Amended Complaint, in the form attached as Exhibit A to the declaration of Lawrence Segal, no later than five days from the date of this order.

The court grants plaintiffs Jason J. Emer, M.D., Professional Corporation and Jason J. Emer, M.D.’s motion to continue trial and discovery cutoff.

The court orders:

1.  The trial in this action is continued from February 7, 2024, to July 24, 2024, at 11:00 a.m., in Department 53. 

2.  The Final Status Conference is continued from January 25, 2024, to July 11, 2024, at 8:30 a.m., in Department 53. 

3.  All discovery cut-off and discovery motion cut-off dates, and deadlines for the exchange of information concerning expert trial witnesses shall be based on the new trial date.

4.  The deadline to complete mediation is extended to May 31, 2024.   

            The court grants plaintiff Jason J. Emer, M.D., Professional Corporation’s motion to compel the deposition of Exod Arch Inc.’s person most qualified as follows.

            The court orders defendant Exod Arch Inc. (1) to designate and produce for deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to the matters set forth in plaintiff Jason J. Emer, M.D., Professional Corporation’s Notice of Deposition, on January 16, 2024, at 10:00 a.m., and January 17, 2024, at 10:00 a.m., at the offices of Segal Law Group, located at 9100 Wilshire Blvd., Suite 616E, Beverly Hills, California 90121, and (2) to produce the documents responsive to the requests for production of documents, numbers 89-93, requested in plaintiff Jason J. Emer, M.D., Professional Corporation’s Notice of Deposition.

            The court orders plaintiffs Jason J. Emer, M.D., Professional Corporation and Jason J. Emer, M.D. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  November 27, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court