Judge: Serena R. Murillo, Case: 19STCV16639, Date: 2023-05-04 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) 

IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 

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: 19STCV16639    Hearing Date: May 4, 2023    Dept: 29

TENTATIVE

Defendants’ motion to continue trial is GRANTED. Trial is continued to January 8, 2024. However, discovery and motion cutoff dates (including expert discovery) shall only be extended limited to any newly identified care.

Legal Standard

Trial continuances are disfavored and may be granted only on an affirmative showing of good cause.  (CRC 3.1332(c); Thurman v. Bayshore Transit Mgmt., Inc. (2012) 203 Cal.App.4th 1112, 1127.)  Dates assigned for trial are firm, and parties and their attorneys must regard these dates as certain to ensure prompt disposition of civil cases.  (CRC 3.1332(a).)  

However, CRC, Rule 3.1332(c) states, in relevant part: “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. CRC, Rule 3.1332(c) lists several circumstances that may indicate good cause, including the unavailability of witnesses, the unavailability of parties, the unavailability or substitution of trial counsel, the addition of new parties, a party’s excused inability to obtain material evidence, or a significant, unanticipated change in the case’s status. (CRC, Rule 3.1332(c)(1)-(7).) 

Further, CRC, Rule 3.1332(d) states: “In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” 

Code of Civil Procedure section 2024.050 allows a court to grant leave to complete discovery proceedings. In doing so, a court shall consider matters relevant to the leave requested, including, but not limited to: (1) the necessity of the discovery, (2) the diligence in seeking the discovery or discovery motion, (3) the likelihood of interference with the trial calendar or prejudice to a party, and (4) the length of time that has elapsed between previous trial dates. (Code Civ. Proc. § 2024.050.

Discussion

Defendant moves to continue trial for nine months, arguing good cause exists as Plaintiffs’ new counsel has not responded to Defendants’ request for supplemental interrogatories and request for production of documents, propounded on February 2, 2023. As a result, Defendants have filed motions to compel, but the first available hearing date is for November 9, 2023, after the current trial date. The records and discovery requested goes to treatments that the Plaintiffs have recently received from December 2022 through the time of the filing of this motion. Defendants argue that given Plaintiff’s actions, defense counsel and its experts are now unable to prepare for expert depositions and prepare for trial. Given the close court deadlines, Defendants have not had a reasonable opportunity to conduct an assessment of the Plaintiffs' alleged injuries, receive the requested documents, responses to Supplemental Interrogatories, Supplemental Document Requests, and receive the documents requested related to all medical treatments.

Plaintiffs argues in opposition that they cannot afford a continuance because they have not been able to obtain necessary but costly care. Plaintiffs are agreeable to a continuance for two to four weeks, but object to a longer continuance, or re-opening discovery. Plaintiffs argue that good cause does not exist. They argue that because discovery is closed, a trial continuance does not reopen discovery. While Defendants point to the fact that Plaintiffs served discovery just last week, those responses were not even due until April 3. Plaintiffs’ counsel is still relatively new to the case and needed time to collect and sort the responses to twelve sets of discovery that Defendants served at the eleventh hour. When defense counsel granted Plaintiffs’ extension to respond, he stated he did not believe his clients would need to conduct additional discovery or acquire more time to prepare their experts for trial. As noted in Plaintiffs’ responses to the discovery requests, there have been no new or substantive developments regarding the medical care and treatment of Plaintiffs. Plaintiffs contend that Defendants have had four years to propound discovery.

In reply, Defendants argue that the records produced still appear to be incomplete and do not contain all the tests performed on Plaintiffs. According to Dr. Filler's clinic, the Neurography Institute, he had recently ordered new MRIs for the Plaintiffs and additional eye tests including videonystagmography tests for Plaintiff Sara Morgan and other tests. Yet, none of these records have been produced and will require a court order for production. These referenced documents have also not been produced through the subpoena process or by Plaintiffs. Contrary to Plaintiffs' opposition, Defendants argue, it is clear from this discovery that there have been significant new and substantive developments to Plaintiffs medical care not disclosed until the filing of this Motion. As an example, Plaintiff Sarah Morgan recently treated with  an Ophthalmologist named Dr. Jordan during the end of December of 2022, in Tennessee. Dr. Jordan noted that Sarah needed a full neurological rehabilitation. Similarly, Plaintiffs just produced additional hearing testing records from September 28, 2022 from Dr. Scarbor who performed a pressure test (tympanometry) for outstanding hearing problems related to TBI. This was just disclosed after the filing of this motion and right before the discovery cut-off.

The Court finds that Defendants have shown there is good cause to continue trial, as they argue certain records are missing from Plaintiffs’ production of documents, Defendants need more time to obtain these records, and due to recently disclosed treatment Plaintiffs have undergone.  As such, the motion is granted. Trial is continued to January 8, 2024. However, as the only good cause Defendants have shown relates to the recently disclosed new diagnoses, tests and treatments, discovery and motion cutoff dates (including expert discovery) shall only be extended limited to any newly identified care in Plaintiffs’ discovery responses provided in April of 2023.

Conclusion

Accordingly, Defendants’ motion to continue trial is GRANTED. Trial is continued to January 8, 2024 at 8:30 a.m.; FSC December 27, 2023 at 10:00 a.m.. However, discovery and motion cutoff dates (including expert discovery) shall only be extended limited to any newly identified care.

Moving party is ordered to give notice.