Judge: Stephen P. Pfahler, Case: 19STCV09283, Date: 2023-02-02 Tentative Ruling
Case Number: 19STCV09283 Hearing Date: February 2, 2023 Dept: F49
Dept. F-49
Date: 2-2-23 (specially set via 1-4-23 ex parte order)
Case #19STCV09283
Trial Date: 3-20-23 c/f 12-5-22 c/f 7-25-22 c/f 1-24-22 c/f 12-6-21
REOPEN DISCOVERY
MOVING PARTY: Defendant, Alon Antebi, M.D.
RESPONDING PARTIES: Plaintiff, Stephen Allen
RELIEF REQUESTED
Motion for Summary Judgment
SUMMARY OF ACTION
On March 18, 2018, Plaintiff Stephen Allen was involved in an automobile accident, which led to transportation to the emergency room of St. Jospeh Medical Center dba Holy Cross Medical Center, a facility operated by Defendant Providence Health System – Southern California dba Providence Holy Cross Medical Center. Defendant Doctor Alon Antebi performed surgery on Plaintiff’s right leg. Plaintiff alleges that Dr. Antebi improperly placed a screw into the dynamic slot of Plaintiff’s leg without consent. Plaintiff alleges he only consented to placement of a screw into the static slot. Plaintiff alleges that the placement of the screw into the dynamic slot caused the bone to subsequently shift and shatter, thereby confining Plaintiff to a wheelchair for the rest of his life.
On March 18, 2019 and June 20, 2019, Plaintiff filed his complaint and first amended complaint for Medical Malpractice and Medical Battery. On September 5, 2019, the court overruled the demurrer of Alon Antebi, M.D. to the first amended complaint. The action was transferred from Department 28 to Department 49 on December 1, 2020.
On May 14, 2021, the court granted Plaintiff leave to file a second amended complaint seeking punitive damages against Alon Antebi, M.D., and denied the motion as to Providence Health System – Southern California dba Providence Holy Cross Medical Center. On May 28, 2021, Plaintiff filed the second amended complaint.
On June 21, 2021, the court denied the motion of Providence Health System – Southern California dba Providence Holy Cross Medical Center. On June 21, 2021, the court granted the motion of Dr. Antebi for summary adjudication on the second cause of action for medical battery.
RULING: Granted.
Plaintiff Stephen Allen moves for leave to reopen discovery for the purpose of deposing trial witness Joseph Hurley. Plaintiff contends the necessity of the deposition arose upon the designation of Hurley as a non-expert trial witness. Plaintiff concedes to the knowledge of Hurley’s identity, but knowingly decided against any deposition given the lack of any knowledge that Hurley was a potential percipient witness. Plaintiff accuses defense counsel of “gamesmanship” in designating Hurley, and denies any lack of diligence. Plaintiff maintains suffering greater prejudice, due to the lack of a pre-trial deposition rather than Defendant presenting the witness for deposition before trial.
Defendant Alon Antebi, D.O., in opposition challenges the motion on grounds that Plaintiff was aware of Hurley since June 2021, and Plaintiff’s own dilatory conduct caused the delayed request, rather than any “gamesmanship” by Antebi.
Defendant in reply reiterates the “gamesmanship” arguments and denies any lack of diligence.
Pursuant to California Code of Civil Proc., §2024.050, the Court may continue the discovery cut-off date.
In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:
(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.
The court adheres to a discovery policy encouraging the completion of full discovery prior to trial. While the court considers the diligence or dilatory conduct of the parties in any request for late leave to complete discovery, the court also strongly considers the necessity of the subject matter and any potential prejudice.
Plaintiff acknowledges knowledge of Hurley, and identification of Hurley as a potential witness at the time of the creation of the joint witness list. Plaintiff admittedly made a calculated decision to forego taking the deposition of Hurley, due to the belief that the witness would offer no percipient information relevant to the defense of the action. Defendant’s designation of Hurley apparently arises for the intention of Defendant to present office procedure testimony, even if Hurley was not an employee of Defendant in 2018 (according to Plaintiff).
The court accepts the decision of Plaintiff’s counsel in declining to take the deposition of Hurley at an earlier time given the apparent intended direction of the case. Nevertheless, the court finds the designation of Hurley should not preclude pretrial discovery simply because of a decision made more than one year earlier. Given the March 20, 2023, trial date, the court’s own policy on discovery, the limited impact of conducting a single percipient witness deposition, and the
greater potential prejudice falling on Plaintiff not given an opportunity to complete discovery well before the trial date, the court grants the motion.
The court orders the parties to meet and confer and set a deposition date within 10 days of this order. The deposition is to be completed no later than 25 days from this order.
Trial remains set for March 20, 2023.
Plaintiff to give notice.