Judge: Serena R. Murillo, Case: 18STCV07250, Date: 2022-09-20 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.



Case Number: 18STCV07250    Hearing Date: September 20, 2022    Dept: 29

Monica Lazo v. Nareh Avedian, et al. 


 

Motion to Reopen Discovery filed by Plaintiff Monica Lazo


TENTATIVE

 

The motion to reopen discovery is GRANTED.

 

Legal Standard

Except as otherwise provided, “any¿party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.”¿ (Code Civ. Proc., § 2024.020(a).)¿ “[A]¿continuance¿or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to¿CCP¿section 2024.050.¿ (Code Civ. Proc., § 2024.020(b);¿Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc.¿(2008) 165 Cal.App.4th 1568.)¿¿CCP¿section 2024.050 provides that “[o]n¿motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.”¿ (Code Civ. Proc., § 2024.050(a).)¿

 

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.¿¿

 

(Code Civ. Proc., § 2024.050(b).)¿¿

 

A motion to reopen discovery pursuant to¿CCP¿section 2024.050 must be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.¿ (Code Civ. Proc., § 2024.050(a).)¿

 

Discussion

 

I.           Necessity and Reasons for the Discovery and Plaintiff’s Diligence 

Plaintiff moves to reopen discovery, arguing that Defendant sought ex parte relief to continue the trial date and extend the discovery cutoff date. However, the Court granted the request to continue trial but invited a noticed motion to extend the discovery cut-off date. However, the Court stated that the parties may stipulate to extending discovery. Because Defendant sought to extend the discovery cut-off, Plaintiff argues she was lulled into a false sense of security that the discovery cut-off dates would be extended by stipulation. Thus, she argues that at the time, she thought it was reasonable to delay taking the deposition of Defendant’s experts. Plaintiff argues it is imperative that treating physicians and non-retained experts are deposed prior to retained experts, as the retained experts will be basing their opinions on such testimony. Furthermore, Defendants seek to compel further discovery from Plaintiff, having filed those relevant motions. Until those motions are ruled on, it is unknown whether the experts will have all they need to form their opinions.

Plaintiff has demonstrated that deposing Defendants’ experts and resolving the motions to compel further are all necessary for this litigation.

 

As to diligence, Defendant argues that Plaintiff failed to depose two of Defendant’s retained experts without explanation. For example, at 4:18 p.m. on August 4, 2022, following Defendant’s Ex Parte Application and the day before Defendant’s retained expert, Dr. Welcher’s deposition, Plaintiff emailed Defendant and indicated in part “but given the courts ruling we’re taking all of our expert depos off.” Defendant argues such a decision made no sense, considering the Court’s ruling was to keep the cut-off deadline on August 15, 2022. Plaintiff’s response reiterated that all pending depositions were canceled. Defendant and Dr. Welcher prepared themselves for the deposition through hours of review, and thereafter appeared as noticed at 2:00 p.m. on August 5, 2022. Defendant emailed Plaintiff at 1:31 p.m. and 2:03 p.m. and requested the link for the deposition. At 2:11 p.m., Plaintiff indicated that “There’s no link.”

 

Plaintiff argues that it was reasonable to release the calendared deposition dates at the time. She argues that Defendant initially sought ex parte relief to continue the trial date and extend the discovery cutoff date. However, the Court granted the request to continue trial but invited a noticed motion to extend the discovery cut-off date. The Court also stated that the parties could stipulate to extending discovery. Because Defendant initially sought to extend the discovery cut-off, Plaintiff argues she was lulled into a false sense of security because she believed Defendant would stipulate to extend the cut-off date, but Defendant then refused to. Plaintiff argues that at the time, she thought it was reasonable to release the calendared dates for the deposition of Defendant’s experts under the mistaken assumption that Defendant desired the same.

 

The Court finds that Plaintiff was not diligent when she canceled the depositions of Defendant’s experts, even if she believed Defendant would extend the discovery cut-off date. The depositions were noticed and Defendant and the experts appeared and were ready for deposition.

 

In sum, the court finds that the necessity and reasons for the discovery weigh in favor of continuing the discovery cutoff dates, but that there was a lack of diligence on the part of Plaintiff in seeking the subject discovery.

 

II.          The Likelihood that Permitting the Discovery Will Prevent the Case from Going to Trial on the Date Set, Prejudice, and the Length of Time Between the Date Previously Set for Trial and the Current Trial Date 

Plaintiff contends that allowing the parties additional time to complete discovery will not prejudice Defendant and will not delay the trial date.  Defendant sought to extend discovery herself through ex parte relief due to Defendant’s motions to compel further which are set to be heard after the discovery cut-off date.

Defendant has not argued she would be prejudiced.

 

Accordingly, the court finds that this factor favors continuing the relevant discovery cutoff dates.   

 

The final factor is the length of time that has elapsed between any date previously set and the date presently set for the trial of the action.  (Code Civ. Proc., § 2024.050, subd. (b)(4).)  The parties do not raise arguments concerning this factor and the court therefore does not find that it weighs for or against continuing the discovery cutoff date.  

 

As such, because the majority of the factors weigh in favor of continuing the discovery cutoff date, Plaintiff’s motion is granted.

 

Conclusion

 

Based on the foregoing, Plaintiff’s motion to reopen discovery is GRANTED.

 

Moving party is ordered to give notice.