Judge: Stephen P. Pfahler, Case: MC027686, Date: 2022-07-29 Tentative Ruling

Case Number: MC027686    Hearing Date: July 29, 2022    Dept: F49

Dept. F-49

Date: 7-29-22

Case #MC027686

Trial Date: 11-7-22 c/f 6-27-22

DEADLINE EXTENSION

MOVING PARTY:                Defendant, Kinkisharyo International, LLC

RESPONDING PARTY:       Plaintiff, Pablo Scipione

RELIEF REQUESTED

Motion to Extend Discovery Cutoffs in Conformance with New Trial Date

SUMMARY OF ACTION

The action arises from a February 2, 2016 incident whereby Plaintiff Pablo Scipione was performing electrical work on the premises of a business owned, managed and/or operated by Defendant Kinkisharyo International, LLC, and identified as the “Train Factory.” Plaintiff alleges slipping off the wet roof of a train, and fell, thereby causing injuries. Plaintiff filed a complaint on January 25, 2018 for negligence. On March 20, 2018, Plaintiff filed a first amended complaint for negligence. On March 19, 2019, Plaintiff filed the second amended complaint for negligence, and equitable estoppel. On July 18, 2019, Plaintiff filed the third amended complaint for negligence and equitable estoppel, and negligent hiring, supervision, and retention. On January 16, 2020, Plaintiff filed the fourth amended complaint for Negligence and Equitable Estoppel, and Negligent Hiring, Supervision and Retention.

The action was first reassigned from Judge Morgan to Judge Chang on March 26, 2021. On January 28, 2022, the case was assigned from Judge Chang to Judge Kelley. Defendant filed a 170.6 against Judge Kelley, thereby leading to the transfer from Antelope Valley Courthouse to Department 49 on February 4, 2022.

RULING: Granted.

Defendant, Kinkisharyo International, LLC moves for an extension of certain discovery cutoffs in conformance with the continued trial date of November 7, 2022. The outstanding discovery issues specifically involve the deposition of Plaintiff’s treating podiatrist, Nasim Kalhor, and subpoenas to at least 10 medical providers. Plaintiff in opposition represents the parties already stipulated to completing expert depositions; production of the workers’ compensation records occurred; and, a general challenge to the “balance” of the requests on the basis of lack of diligence and an insufficient showing of the necessity, including specific identification of any and all specific treating physicians. Defendant in reply reiterates the prejudice in not being able to complete discovery, and the outstanding volume of discovery remaining.

Pursuant to Code of Civil Procedure section 2024.050, subdivision (b) 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 motion contains sufficiently articulated support for leave, including a showing of diligence. New counsel substituted into the case in August 2021, which justifies any later requested discovery. While Plaintiff represents numerous stipulations for production and depositions, Plaintiff still submits a vociferous opposition to explain said agreements and then requests sanctions. Therefore, given the parties’ acrimonious relationship, and the generally aggressive discovery tactics of Plaintiff’s counsel, the court finds the subject motion insures the completion of discovery with the goal of reduced courtroom requests. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.) Plaintiff otherwise presents no showing of prejudice.

“The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2024.050, subd. (c).) The motion lacks any request from Defendant, and the court declines to award any sanctions to Plaintiff.

The court again notes that the subject action was transferred after extensive work in the prior courtrooms, yet continues to persist with aggressive discovery tactics thereby generating law and motion hearings for the court. The court does not conduct discovery conferences. The instant motion comes after what appeared to be the conclusion of discovery and preparation for trial, until yet another trial extension was granted. In the event of potential future discovery disputes which were previously statutorily blocked, continued extensive disputes, including arguments challenging the necessity of a motion due to the conduct of the parties, may lead to the setting of an OSC re: Discovery Referee upon the next discovery motion to appear before the court in lieu of a hearing on the motion. The court notes numerous depositions and subpoenas remain outstanding, as well as alleged remaining verifications. This may also lead to a second trial continuance up to the five year limit from the date of the filing of the complaint.

Order to Show Cause re: Referral to Long Cause Trial set for October 13, 2022.

Defendant to give notice.