Judge Serena R. Murillo, Case 20STCV01492 2023-02-14 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV01492, Date: 2023-02-14 Tentative Ruling

Case Number: 20STCV01492 Hearing Date: February 14, 2023 Dept: 29

TENTATIVE

Defendant Home Depot, U.S.A., Inc.’s motion to continue trial is GRANTED. Trial is continued to July 17, 2023. Discovery and motions cutoff dates are to track the new trial date.

Legal Standard

California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for “good cause,” which includes (without limitation): (1) unavailability of trial counsel or witnesses due to “death, illness, or other excusable circumstances”; (2) the addition of a new party depriving the new party (or other parties) from conducting discovery and preparing for trial; (3) “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”; or (4) “[a] significant, unanticipated change in the status of the case” preventing it from being ready for trial. (Id., Rule 3.1332(c).)

Other relevant considerations 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 a 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 on the continuance; and [¶] (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Id., Rule 3.1332(d).)

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 for a trial continuance to a date after its currently reserved motion to compel deposition hearing scheduled for May 22, 2023, and its motion to compel an additional independent medical exam (IME) of Plaintiff scheduled for September 28, 2023. Defendant argues good cause exists based on the following facts. On November 30, 2022, Defendant properly and timely noticed and served the subpoena for the deposition of Jae Hyung Chon, M.D. set to take place on January 10, 2023. Dr. Chon served as plaintiff’s treating physician in association with his preexisting injuries related to his cervical and lumbar spine, which are highly relevant to the instant lawsuit. Dr. Chon ordered Plaintiff undergo MRIs of both body parts. Despite numerous attempts to reach Jae Hyung Chon, M.D., to confirm his appearance at the deposition or to reschedule to another date, Dr. Chon failed to respond to any of these communications. Thus, on January 10, 2023, the deposition could not proceed. Since then, Defendants’ counsel has continued to attempt to coordinate a rescheduled deposition time with Dr. Chon to no avail. As such, Home Depot reserved the first available date for a motion to compel Dr. Chon’s deposition, which is May 22, 2023. Next, Defendant came to learn, for the first time in plaintiff’s supplemental discovery responses served on December 1, 2022, that plaintiff had subsequently sought treatment by Dr. Andrew Berman, an Ear, Nose, Throat (ENT) doctor, on January 20, 2022, for complaints of tinnitus and vocal cord damage arising from his cervical procedure. Plaintiff subsequently designated Dr. Berman in their initial expert designation. On that basis, Defendants have sought to retain an ENT specialist in order to evaluate these newly discovered complaints and have sought an agreement by Plaintiff’s counsel to submit to an additional examination. To date, Plaintiff has declined any agreement, requiring Defendants to reserve a hearing date for a motion to compel an additional medical exam. Unfortunately, the first available date was September 28, 2023, which has been reserved.

In opposition, Plaintiff argues that in the spirit of compromise and in an effort to avoid another trial continuance, he has agreed to undergo a fourth defense medical examination with Dr. Bredenkamp, Defendant’s Otolaryngology expert, on February 7, 2023. As to Dr. Chon, Plaintiff argues that there is simply no good cause to grant an eight-month continuance for Defendant’s failure to timely and adequately depose Dr. Chon. Dr. Chon’s identity and address was disclosed back on July 7, 2020. Defendant has had two years and six months to take Dr. Chon’s deposition. Plaintiff argues that waiting just before the discovery cut-off to notice and a compel the deposition does not provide good cause for an eight-month trial continuance.

The Court finds there is good cause to continue trial as Defendant seeks to depose Dr. Berman, and Dr. Chon. Further, Defendant has argued that it has only learned of these additional claims for vocal cord injury and tinnitus recently, and thus, has sufficiently explained why an ENT specialist is now necessary, including the need to depose Dr. Berman. However, trial will only be continued to July 11, 2023. As Plaintiff has now agreed to a fourth medical examination, the hearing reserved for the motion to compel IME on September 28, 2023 is not necessary. Moreover, the Court notes that there is another motion to compel an IME reserved for June 16, 2023. As such, in the event Plaintiff misses the IME he agreed to on February 7, 2023, a trial continuance to July will give Defendant sufficient time to hear the motion to compel this examination on June 16, 2023. While Plaintiff argues that he would be prejudiced by a trial continuance because of the delay, it is not clear how so and he broadly argues that justice delayed is justice denied. Not so. Defendant would be more prejudiced if it is not allowed sufficient opportunity to evaluate these new claims for damages. Plaintiff will still have his day in court. Thus, the motion is granted. Trial is continued to July 17, 2023. Discovery and motions cutoff dates are to track the new trial date.

Conclusion

Accordingly, the motion to continue trial is GRANTED. Trial is continued to July 17, 2023. Discovery and motions cutoff dates are to track the new trial date.

Moving party is ordered to give notice.