Judge: Steven A. Ellis, Case: 22STCV10031, Date: 2023-12-21 Tentative Ruling

Case Number: 22STCV10031    Hearing Date: December 21, 2023    Dept: 29

Tentative

Plaintiff’s motion to reopen expert discovery and for leave for a late designation of experts is GRANTED.

Background

This case arises out of an alleged vehicle accident on May 25, 2021, near the intersection of La Brea Avenue and 21st Street in Los Angeles.  On March 22, 2022, A. Jamal Shakir (“Plaintiff”) filed the complaint against Armando Velasco and Does 1 through 10, asserting causes of action for negligence; negligent hiring, supervision, and retention; negligence per se; and negligent entrustment.  On July 8, 2022, Plaintiff amended the complaint to name Peter Frank Velasco as Doe 1.

On July 22, 2022, Defendants Armando Velasco and Peter Frank Velasco (“Defendants”) filed an answer to the complaint.

On filing, the Court set the matter for trial on September 20, 2023, with a Final Status Conference on September 6, 2023.

On September 19, 2023, the Court continued trial to January 12, 2024, but did not reset the expert or any other discovery deadlines.  The Court denied, without prejudice, Plaintiff’s ex parte application to reopen expert discovery or for leave for a late designation of experts and stated that Plaintiff could seek such relief through a noticed motion.

On October 11, 2023, Plaintiff filed this motion seeking an order reopening expert discovery or leave for a late designation of experts.  Defendants filed an opposition on November 6, 2023. No reply has been filed.

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., § 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., § 2024.050, subd. (b)(1)-(4).)¿¿¿

The Court may grant leave to allow a late designation of experts under Code of Civil Procedure section 2034.720 when the following conditions are satisfied:

“(a) The court has taken into account the extent to which the opposing party has relied on the absence of a list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party's action or defense on the merits.

(c) The court has determined that the moving party did all of the following:

(1) Failed to submit the information as the result of mistake, inadvertence, surprise, or excusable neglect.

(2) Sought leave to submit the information promptly after learning of the mistake, inadvertence, surprise, or excusable neglect.

(3) Promptly thereafter served a copy of the proposed expert witness information described in Section 2034.260 on all other parties who have appeared in the action.

(d) The order is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just ….”

Discussion

Due to a variety of circumstances, including illness and other trial matters, Plaintiff’s counsel inadvertently missed the expert designation deadline in this case.  (Arreola Decl., ¶ 4.)  As soon as counsel realized the error, he prepared an ex parte application seeking relief and gave notice to Defendants’ counsel.  (Id., ¶¶ 5-6.)  Defendants opposed the ex parte application.  On September 19, 2023, the Court continued the trial, denied the request for relief on an ex parte basis without prejudice, and stated that Plaintiff could seek relief through a noticed motion.

Following the ruling on the ex parte application, counsel communicated with each other about Plaintiff’s request for relief, but no agreement was reached.  (Id., ¶ 8.)  Plaintiff filed this motion on October 11, and attached to the motion (as Exhibit D) Plaintiff’s proposed designation of experts.

The Court has carefully considered the arguments presented by both sides and the evidence in the record and finds that Plaintiff has made an adequate showing under Code of Civil Procedure section 2034.720 for a late designation of experts and under Code of Civil Procedure section 2024.050 to reopen expert discovery after a new trial date has been set.  The Court finds, among other things, that Plaintiff’s failure to designate was the result of inadvertence of his counsel, that Defendants have not reasonably relied to their detriment on the absence of the designation, that a late designation will not be unduly prejudicial to Defendants in maintaining their defenses on the merits, and that Plaintiff’s counsel has acted with reasonable diligence upon discovery of their error.  No party has argued that granting the relief will require a further continuance of trial.

Accordingly, Plaintiff’s motion is GRANTED.

Conclusion

Plaintiff’s motion is GRANTED.

The Court GRANTS Plaintiff’s request for leave for a late designation of expert witnesses, as set forth in Exhibit D to the motion, filed and served on or about October 11, 2023.

The Court CONDITIONS this order on Plaintiff making his experts available immediately for a deposition under Article 3 (commencing with section 2034.410) of Chapter 18 of Title 4 of Part 4 of the Code of Civil Procedure.

The Court GRANTS Plaintiff’s request to reopen expert witness discovery.  The statutory deadlines for expert witness discovery are hereby reset based on treating the current trial date of January 26, 2024, as if it were the initial trial date.  

Moving Party is to give notice.