Judge: Steven A. Ellis, Case: 20STCV30194, Date: 2024-02-13 Tentative Ruling

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ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV30194    Hearing Date: February 13, 2024    Dept: 29

Motion to Reopen Discovery filed by Plaintiff Sadegh Nabakhteh.

TENTATIVE

The motion is granted.

BACKGROUND

Plaintiff Sadegh Nabakhteh (“Plaintiff”) alleges that he was severely injured after he slipped and fall on March 2, 2020 at the front area of a store in Calabasas.  On August 7, 2020, Plaintiff filed his complaint asserting causes of action for general negligence and premises liability against Defendant Harbor Freight Tools USA, Inc. (“Defendant”), and Does 1 through 100.  Defendant filed its answer on October 14, 2020.

On filing, the case was assigned a trial date of February 4, 2022.

On January 6, 2022, at Plaintiff’s request, and over Defendant’s opposition, trial was continued to July 29, 2022, with all deadlines reset based on the new trial date.

On June 24, 2022, at Plaintiff’s request, and over Defendant’s opposition, trial was continued to September 13, 2023.  No extension of deadlines was requested or granted.

On August 23, 2023, at Plaintiff’s request, and over Defendant’s opposition, trial was continued to April 3, 2024.  No deadlines were extended.

On January 19, 2024, Plaintiff filed this motion to reopen discovery for the limited purpose of retaining experts to testify on Plaintiff’s recent surgery and expected future costs. Defendant filed its opposition on January 30, 2024. Plaintiff filed his reply on February 5, 2024.

LEGAL STANDARD

 “On motion of any party, the court may grant leave to complete discovery proceedings, or 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.¿ This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”¿ (Code Civ. Proc., section 2024.050, subd. (a).)¿ ¿¿ 

“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.”¿ (Code Civ. Proc., section 2024.050, subd. (b)(1)-(4).)¿¿¿ 

“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., section 2024.050, subd. (c).)¿¿¿ 

MEET AND CONFER REQUIREMENT

The meet and confer requirement of Code of Civil Procedure section 2024.050, subdivision (a), is satisfied.  (Jalilvand Decl., ¶ 2.)

DISCUSSION

All discovery is currently closed in this case.

The parties exchanged expert witness designations on June 7 and 8, 2022. (Id., ¶ 5, Exh. A-B.) Plaintiff designated two retained experts: Gary White as a retail expert to testify on store safety issues, and Dr. Babak Samimi, an orthopedic surgeon, to testify on issues relating to Plaintiff’s injuries, causation, and treatment.  Plaintiff also listed 16 non-retained experts who had treated Plaintiff.

The parties noticed expert depositions in June and July 2022, but after the Court continued trial on June 24, 2022, the parties took the depositions off calendar and stipulated to extend the time for expert depositions to July 1, 2023. (Id., ¶ 9 & Exh. G.)

Although that stipulated deadline passed approximately seven months ago, no expert depositions have been taken.  (Id., ¶ 10.)

On July 5, 2023, after the stipulated deadline, Plaintiff served a demand for exchange of expert information Code of Civil Procedure section 2034.210.  (Id., ¶ 11 & Exh. H.)  On July 25, Plaintiff (again after the stipulated deadline) served an expert witness designation listing three retained experts: Mr. White, Dr. Samimi, and Dr. Lawrence Miller, a pain management specialist to testify on issues relating to Plaintiff’s pain, causation, and treatment.  Plaintiff also listed 18 non-retained experts who had treated Plaintiff.  (Id., ¶ 13 & Exh. I.)  The next day, Defendant objected to this new designation. (Id., ¶ 14 & Exh. J-K; Cho Decl., Exh. 4.)

In August 2023, Plaintiff had a stimulator implanted in his right knee.  Plaintiff’s counsel states that this was a significant development not anticipated by counsel; Plaintiff now seeks to designate additional expert witnesses to opine as to the necessity of the implant and future care costs.  (Jalilvand Decl.,, ¶¶ 15-16 & Exh. L.) 

With the moving papers, Plaintiff provides a proposed new and updated expert designation.  The proposed new designation now lists four retained experts: Mr. White, Dr. Samimi, Dr. Miller, and Dawn Cook, R.N., a life care planner to testify on issues relating to Plaintiff’s future care, medical needs, and future costs.  Plaintiff also lists 17 non-retained experts who have treated Plaintiff, including the doctor who performed the stimulator implant (Dr. Kuimars Arfai).  (Id., ¶¶ 15, 21-22 & Exh. R.) 

In ruling on the Plaintiffs motion, the Court will consider the four factors set forth in Code of Civl Procedure section 2024.050, subdivision (b), as set forth in the parties’ papers.  (The Court notes that the parties appear to agree that this motion should be decided under the standard of section 2024.050.  Neither side asserts that Code of Civil Procedure section 2034.610 or 2034.620, or any other standard, applies.)

The necessity and the reasons for the discovery.¿

Plaintiff argues that his condition has changed since the discovery cutoff; among other things, Plaintiff has had additional treatment and had a stimulator implanted in his right knee in August 2023.  Plaintiff argues, in essence, that he would be prejudiced if he were barred from presenting expert testimony at trial regarding these recent developments, his up-to-date medical condition, and the treatments that he is now likely to need to receive in the future.  Although Defendant contends that these developments could have been anticipated and/or addressed prior to the cutoff, the Court finds that Plaintiff has shown sufficient evidence of necessity and reasons for the discovery.  This factor weighs strongly in favor of granting Plaintiff’s motion.

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.¿

Plaintiff has not shown diligence.  Plaintiff’s latest surgery was in August 2023, but he did not file this motion until five months later, in January 2024.  Plaintiffs did serve supplemental discovery responses in October 2023, and there were apparently ongoing settlement negotiations (Jalilvand Decl., ¶¶ 18, 20 & Exhs. M-O), but settlement discussion happen in all cases, and the potential for settlement (whether great or small) is no excuse for failing to prepare for trial in a diligent fashion.

Plaintiff also contends that he did not receive a written report from Dr. Arfai until December 2023, and that it was only after receiving that report that Plaintiff decided that a life care planner expert would be necessary.  (Jalilvand Decl., ¶¶ 21-23 & Exhs. Q; Reply Jalilvand Decl., ¶¶ 2, 4.)  This evidence mitigates, to some degree, the Plaintiff’s failure to act diligently.  But nonetheless this factor weighs moderately against granting Plaintiff’s motion.

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.¿

The Court does not see why granting this motion would prevent the case from going to trial on April 3.  Nor would there be any unfair or undue prejudice to Defendant, provided that (1) Defendant is given the opportunity to depose the expert witnesses not included in the designations made prior to the deadline; and (2) Defendant is given the opportunity to counter-designate expert witnesses to testify on the same topics.  This factor weighs moderately in favor of granting Plaintiff’s motion.

The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

Trial was initially set for February 2022, trial is now set for April 2024, and the parties agreed to an expert discovery cutoff of July 1, 2023.  This factor weighs moderately against granting Plaintiff’s motion.

After carefully reviewing the evidence and the argument of the parties, and the factors set forth in Code of Civil Procedure section 2024.050, the Court GRANTS the motion.  In particular, the Court finds that Defendant would not suffer any unfair or undue prejudice from an order granting the motion, but Plaintiff would be substantially prejudiced if he were unable to present up to date and complete evidence, at trial, of his treatments and future care needs.

To protect against any unfairness to Defendant, Defendant is permitted to depose the expert witnesses designated by Plaintiff that were not included in the designations made prior to the deadline and to counter-designate expert witnesses to testify on the same topics.  

CONCLUSION

The Court GRANTS Plaintiff’s motion to reopen discovery to the extent that Plaintiff seeks to provide an updated witness designation (Exhibit R to the moving papers).

The Court imposes the following additional conditions: (1) Defendant may depose, no later than 14 days before trial, any expert witness included in the updated witness designation who was not included in the expert witness designation served by Plaintiff prior to July 1, 2023 (Exhibit A to the moving papers); (2) Defendant may, pursuant to Code of Civil Procedure section 2034.280, counter-designate expert witnesses on the same subjects within 20 days; and (3) Plaintiff may depose, no later than 14 days before trial, any expert witness so counter-designated by Defendant. 

The deadlines set forth in this ruling may be extended by written stipulation of the parties, without the need for a further court order.

In all other respects, discovery (including expert discovery) remains closed.   

Moving Party to provide notice.