Judge: Serena R. Murillo, Case: BC713566, Date: 2022-10-19 Tentative Ruling

Case Number: BC713566    Hearing Date: October 19, 2022    Dept: 29

Rebecca Simon v. Rebecca Woolf, et al.

Motion to Continue Trial filed by Defendant Rebecca Woolf

TENTATIVE

The motion to continue trial and related deadlines is granted. Trial is continued to May 15, 2023.

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 to continue trial, arguing good cause exists as Plaintiff has refused to submit to an independent medical examination (IME) and a motion to compel Plaintiff’s IME hearing is currently scheduled for March 20, 2023. The first demand for an IME of plaintiff was served on January 28, 2020. Subsequent demands were served on June 18, 2020, August 19, 2020, and July 14, 2021. (Barrica Decl., ¶ 2; Exh. A.) Plaintiff refuses to attend an IME due to her alleged inability to wear a mask. (Id., ¶ 3.) On August 23, 2022, defense counsel wrote to plaintiff’s counsel again to ask whether plaintiff would continue to refuse to wear a required mask during her IME, and informed plaintiff’s counsel that he would move to continue the trial and compel the examination if necessary. However, defense counsel did not hear back. (Id. ¶ 4; Exh. B.) Defendant argues that the inability to obtain a medical examination of plaintiff, despite the fact the defense has attempted to do so since January 28, 2020, has made evaluation of this case for settlement nearly impossible. Thus, permitting the defense to complete discovery may further settlement.

Plaintiff opposes, and argues that she requested a trial continuance in February 2022 so that Defendant can timely and properly notice and conduct Plaintiff’s IME. However, she argues that Defendant continues to demand Plaintiff to wear a mask despite the CDC no longer requiring masks. Plaintiff argues since the trial continuance in February 2022 until September 12, 2022, defendant neither served a notice of demand for physical examination nor a motion to compel. After the parties exchanged expert witnesses and after plaintiff effectuated service of a deposition notice for defense expert Dr. Rose, on September 12, 2022, defendant filed an untimely motion to compel physical examination to take place on March 30, 2023, five months after current trial date and well beyond discovery cut-off date, thirty days before trial, i.e., on September 28, 2022. Defendant also filed an untimely motion to continue trial to re-open discovery set for October 19, 2022, beyond the motion cutoff date of October 9, 2022.

Defendant argues in reply that the California Department of Public Health most recently published on April 20, 2022 that masks are still required in “all healthcare settings, including those that are not covered by the State Health Officer Order issued on July 26, 2021.” In fact, Defendant argues, on August 23, 2022, Plaintiff’s counsel did not reply to an inquiry as to whether Plaintiff would be able to comply with the state safety guidelines in order for the IME to be conducted.

Indeed, Code of Civil Procedure section 2024.050(a) specifically allows a discovery motion to be heard after the discovery motion cutoff date by providing that “the court may grant leave ... 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.” But that statute also specifies that such leave may be granted “[o]n motion of any party.” (§ 2024.050, subd. (a).) Moreover, in exercising its discretion to grant or deny the motion the court must consider various factors,  including (but not limited to) “[t]he necessity and the reasons for the discovery” and “[t]he diligence or lack of diligence of the party seeking ... the hearing of a discovery motion, and the reasons that ... the discovery motion was not heard earlier.” (§ 2024.050, subds. (a) & (b)(1), (2).) (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc., (2008) 165 Cal. App. 4th 1568, 1586–1587.)

The Court finds that Defendant’s need to complete discovery constitutes good cause for continuing the trial date.  But, the Court notes that discovery has since been cut off.  However, given Defendant’s reasoning for bringing this motion—i.e., a need to complete discovery, the Court finds that Defendant has implicitly requested to reopen discovery. The Court acknowledges that a lack of diligence with respect to discovery would generally weigh against continuing trial and questions why Defendant did not file a motion to compel Plaintiff’s IME once Plaintiff moved for a trial continuance in February of 2022, but instead chose to wait until September 13, 2022 to do so. Even though Plaintiff did not reply to an inquiry asking if Plaintiff would comply with the mask mandate in healthcare settings, Defendant still waited until August of 2022 to follow up on the IME. However, the Court finds that the need for this discovery outweighs any lack of diligence. Moreover, while Plaintiff argues she will be prejudiced as trial strategy and preparedness as well as designation of expert witnesses have been in reliance of statutory compliance, no further explanation has been provided as to why this is so. Thus, the Court finds that Defendant would be prejudiced without being able to evaluate Plaintiff’s injuries in this case by its own expert, and that Plaintiff has not shown how she would be prejudiced by re-opening discovery, especially because she has known since January of 2020 that Defendant has been seeking an IME. Defendant even waited for mask restrictions to be lifted. However, it is out of Defendant’s control that masks are still required in healthcare settings.

Conclusion

Accordingly, the motion to continue trial and related deadlines is GRANTED. Trial is continued to May 15, 2023. Discovery cut-off and motion cut-off dates shall be based on the new trial date.

Moving party is ordered to give notice.