Judge: Serena R. Murillo, Case: 20STCV20734, Date: 2023-03-13 Tentative Ruling

Case Number: 20STCV20734    Hearing Date: March 13, 2023    Dept: 29

TENTATIVE

The motion to continue trial and related dates is GRANTED. Trial is continued to November 22, 2023 at 8:30 a.m.; FSC November 13, 2023 at 10:00 a.m. 

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

As an initial matter, Defendants argue in the reply that Plaintiff’s opposition is untimely and should be disregarded.

“A trial court has broad discretion to overlook late-served papers and to resolve the matter on the merits.”   (Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5th 162, 168 [“(E)ven if the service had been untimely, the trial court was vested with discretion to overlook the defect”]; see also Bozzi v. Nordstrom, Inc.  (2010) 186 Cal.App.4th 755, 765 [“A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.”].) The court exercises its discretion and considers the merits of the opposition. Further, Defendant has filed a reply on the merits, thus waiving the issue of prejudice.

Defendants move to continue trial and all other related deadlines for six months. Defendants argue good cause exists as Plaintiff is now claiming a brain injury and the amputation of both of her legs were caused by the incident, which dramatically and substantially changes the damages in this case; Defendants are set to take Plaintiff’s second session of her deposition on February 22, 2023 and need additional time to have her examined, complete discovery, and secure all relevant medical records; and current defense counsel was not the original defense attorney on this matter, and substituted into the case as defense counsel on August 29, 2022. In July 2022, Plaintiff was deposed. At that time, she testified that both of her legs were amputated in 2021. (Zygelman Decl., Exh. B. pp. 27:20-30:14.) Yet, she did not state that her bilateral amputation was a result of the lid allegedly falling on her head on May 2, 2020. She also stated that she was not claiming traumatic brain injury from this incident. (Id., p. 74:20-23.) At the mediation on October 25, 2022, Plaintiff indicated that she was claiming a brain injury and the amputation of both of her legs as a result of the ice machine lid falling on her head.

Plaintiff argues in opposition that Defendants have known of Plaintiff’s brain injury and the amputation of her legs. On August 27, 2020, Plaintiff served responses to Request for Production of Documents (Set One), she produced the report of neurologist Mahyar Okhovat, M.D., showing Plaintiff reported that she was “struck on the top of her head” by the lid of Defendant’s ice machine, and she experienced an “electric” sensation shooting from her head down her neck, back, arms, and feet at the time of the incident. Plaintiff also reported experiencing blurred vision, irregular heartbeat, high blood pressure, headache, and difficulty sleeping because of the incident. (Padua Decl., ¶¶ 7-8, Exhs. 2-3.) In addition, Plaintiff reported experiencing headaches, nausea, fatigue, noise intolerance, balance problems, dizziness, irritability, depression, anxiety, mood changes, memory issues, and confusion since the incident. Dr. Okhovat’s diagnosed Plaintiff with head injury, concussion with no loss of consciousness, and post-traumatic headaches. (Id., Exh. 3.) Next, Plaintiff argues that Defendant waited until July 19, 2022, to depose the Plaintiff in this action. During Plaintiff’s deposition, Plaintiff testified that her memory had changed since the incident. (Id., ¶ 14, Exh. 7, pgs. 59:25-60:1.) Defense counsel asked Plaintiff if she was claiming traumatic brain injury, and she responded that she is not a doctor but she was experiencing memory loss, headaches, neck pain, nerve pain down her arm among other symptoms. (Id., pgs. 74:20-25-75:1-13.) Defense counsel also acknowledged on the record that he knew Dr. Okhovat had diagnosed Plaintiff with concussion, post-concussive syndrome, and TBI. (Id., pg. 85:2-25.) Plaintiff testified that her cardiologist told her that stress can exacerbate her heart condition, the atrial fibrillation, and that was the reason why she had lost her legs. (Id., pgs. 103:15-20-104:17-25.) Plaintiff lastly argues she will be prejudiced if Defendant’s motion is granted in that Plaintiff has been waiting for several years to have her day in court and receive proper compensation for her injuries.

The Court finds there is good cause to continue trial as defense counsel substituted in this case on August 29, 2022, and needs additional time to prepare its defense to Plaintiff’s injuries, i.e., her claims for TBI and leg amputation. Whether current defense counsel knew that Plaintiff was claiming TBI and bilateral leg amputation in October of 2022 at mediation, or at the end of August of 2022, when they substituted in this case, is not of much import, as the difference is only about a month of time. Defendants still need additional time to gather information to prepare their defense in this matter as they have only recently substituted into this case. Further, defense counsel requires additional time after Plaintiff’s second session of deposition.  While it is unfortunate that prior defense counsel did not explore this at Plaintiff’s deposition even after Plaintiff asked them to, current counsel should be afforded the opportunity to do so. Further, Plaintiff states that she will be prejudiced by a trial continuance, but she does not elaborate as to how this is so. While she seeks compensation for her injuries in this matter, she does not state for example, that she does not have insurance to cover the expenses in the meanwhile. As such, it appears that Defendant would be the one who would suffer prejudice if trial was not continued, and if defense counsel was not afforded an opportunity to fully prepare for the defense of these claims. As such, Defendant’s motion is granted. Trial is continued to November 22, 2023. All motion and discovery cutoff dates shall be based on the new trial date.

Conclusion

Accordingly, the motion to continue trial and related dates is GRANTED. Trial is continued to November 22, 2023.  Motion and discovery dates to follow new trial date. 

Moving party is ordered to give notice.