Judge: Steven A. Ellis, Case: 21STCV16883, Date: 2023-08-07 Tentative Ruling

Case Number: 21STCV16883    Hearing Date: August 7, 2023    Dept: 29

TENTATIVE

The Court DENIES Defendant Shi Lu’s motion to reopen discovery.

Background

This action arises from an automobile accident that occurred on May 16, 2019 on 8th Street in Los Angeles, California. Plaintiffs Oscar Martinez and Kevin Fernandez (collectively, “Plaintiffs”) filed the Complaint in this action on May 5, 2021, alleging one cause of action for negligence against Defendants The Hertz Corporation, Shi Lu, Hertz Vehicles LLC, Hertz, and Does 1-50 inclusive.

On June 14, 2021, the named defendants filed their answer. On the same day, the named defendants filed a notice of stay of proceedings based on the pending bankruptcy proceedings of Defendant The Hertz Corporation.

On June 28, 2022, Plaintiffs dismissed, without prejudice, The Hertz Corporation, Hertz Vehicles LLC, and Hertz. The sole remaining named defendant was (and is) Shi Lu (“Defendant”)

On August 24, 2022, the Court lifted the stay and continued the trial to May 23, 2023. On May 10, 2023, the Court granted the parties joint request to continue the trial to October 31, 2023, to allow the parties to proceed with a mediation scheduled in July 2023 but denied the request of Defendant to reset the discovery deadlines based on the new trial date. Accordingly, discovery was (and is) closed.

On July 12, 2023, Defendant filed this motion to reopen discovery. Plaintiffs filed their opposition on July 21. Defendant filed a reply on July 28. Later on July 28, Plaintiffs filed a sur-reply.

Legal Standard

Code of Civil Procedure section 2040.050 provides, in part:

“(a) 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.

(b) 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., § 2024.050.)

Preliminary Issues

There are no fewer than three preliminary, procedural issues that the Court must address.

First, Defendant did not include a meet and confer declaration with his moving papers. That is required by Code of Civil Procedure section 2024.050(a).

Second, Defendant attempted to cure this defect by submitting the declaration – along with other new evidence – for the first time with his reply papers. New evidence filed with a reply is generally not permitted. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

Third, Plaintiffs filed a sur-reply. Although this appears to have been done at least partly in response to the new material in the reply, it is generally improper to submit a sur-reply without permission from the Court. The Court may, in its discretion, either consider or disregard an unauthorized sur-reply. (Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689, 703.)

Given the nature of these issues, the Court will exercise its discretion to consider both (a) the new evidence submitted with Defendant’s reply and (b) Plaintiffs’ sur-reply. Proceeding in this manner does not appear to be unfairly prejudicial to either side.

Discussion

Defendant seeks to reopen discovery so that he can take depositions of least 13 named fact witnesses, arrange for medical examinations of both plaintiffs, obtain responses to supplemental written discovery requests, and conduct expert discovery. (Mot. at 3:3-8, 7:25-8:7; Bridwell Decl., ¶ 7.) Defendant asserts that he “narrowly tailors” his request and is not requesting “a blanket reopening of discovery.” (Mot. at 3:9-10.) According to Defendant, all of this discovery was deferred while the parties sought to mediate their dispute. (Bridwell Decl.,¶¶ 5-6.) The mediation was apparently not successful.

The Court finds that Defendant has not offered a sufficient reason to reopen discovery. The Court recognizes that the case was stayed for approximately 14 months, but the stay was lifted in August 2022, and there has been no showing of any diligence in pursuing discovery prior to the cutoff in April 2023. Absent an agreement from the opposing party or a court order, the mere hope that the case may settle is not a good reason to defer completing the discovery that Defendant now states is essential to litigation of the case.

There does appear to have been, at the very least, a misunderstanding or miscommunication between counsel regarding whether the stipulation submitted to the Court in May would also include a provision to reopen discovery and reset the deadlines based on the new trial date. That misunderstanding, however, covered only a short period of time, from April 21, 2023 (when Plaintiffs’ counsel signed the stipulation) to May 9, 2023 (when Plaintiffs filed their “limited opposition” to Defendant’s ex parte application. (Bridwell Reply Decl., Exhs. A & C.) And the deadline for fact discovery, based on the May 23, 2023, trial date, was April 23, 2023. This case does not present a situation in which the evidence shows that a lawyer has delayed in conducting discovery based upon reasonable and good faith reliance on a promise or representation by opposing counsel.

The Court has considered each of the factors set forth in section 2024.050(b) and all of the relevant circumstances. The discovery does seem reasonably necessary. The trial was previously set for May 2023 and was continued for approximately six months. There has been no showing of diligence by Defendant. Given the wide scope of discovery that the Defendants seeks, it is substantially certain that another continuance of the trial would be necessary, and that the further delay in trial would be prejudicial to Plaintiff.

After careful evaluation of all of the circumstances, the Court DENIES the request to reopen discovery.

Conclusion

The Court DENIES Defendant Shi Lu’s motion to reopen discovery.

Moving party to give notice.