Judge: Steven A. Ellis, Case: 22STCV21668, Date: 2024-01-18 Tentative Ruling

Case Number: 22STCV21668    Hearing Date: January 18, 2024    Dept: 29

Motion to Reopen Discovery filed by Defendants Pasy Wang and Rolan Hernandez.

TENTATIVE

The motion to reopen discovery is GRANTED.

BACKGROUND

On July 5, 2022, Plaintiff Jose Munoz (Plaintiff) filed a complaint against Pasy Wang, Rolan Hernandez, Pasy Wang, Trustee of the PR Trust, Rolan Hernandez, Trustee of the PR Trust, and Does 1 to 10 for (1) Strict Liability Civil Code section 3342, (2) Strict Liability Common Law, (3) Negligence, and (4) Fraudulent Transfer of Assets stemming from a dog bite incident.

On November 28, 2023, an ex parte hearing was held to continue the January 2024 trial date. Discovery deadlines were to remain as previously set, but without prejudice to a motion to reopen discovery.

On December 19, 2023, Defendants filed the motion to reopen discovery. Plaintiff filed his opposition on January 4, 2024. Defendants filed their reply on January 10, 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).)¿¿¿ 

Pursuant to Code of Civil Procedure, section 2034.710, “(a) On motion of any party who has failed to submit expert witness information on the date specified in a demand for that exchange, the court may grant leave to submit that information on a later date. (b) A motion under subdivision (a) shall be made a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time. (c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.”

“The court shall grant leave to submit tardy expert witness information only if all of 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, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.” (Code of Civ. Proc. Section 2034.720.)

DISCUSSION

The Declaration of Matthew Hrutkay shows that counsel has satisfied the meet and confer requirement.  (Hrutkay Decl. ¶ 2.) Therefore, the meet and confer requirement has been met.

Discovery is currently closed in this case. The Court must consider the four factors to determine if discovery should be reopened to allow discovery of Plaintiff’s recent medical treatment.

Defendants’ counsel states that lead counsel was recently diagnosed with Stage 3 endometrial cancer and was out of the office the week of November 13, 2023, when expert designations were due. (Id., ¶ 5.) This omission of expert designation was not discovered until November 17, 2023. (Id.) Defendants contend that they hired Dr. Emin Gharibian to conduct a neuropsychological examination of Plaintiff, and that he is available on February 14, 2024, to conduct the exam; notice was already served on Plaintiff (Id., ¶9.) Defendants state that they have sought to depose Plaintiffs and their expert witness; Plaintiffs’ counsel stated his clients would not attend. (Id., ¶ 10.) Defendants contend they are still waiting for dates to deposition Plaintiff’s designated expert witnesses. (Id., ¶ 11.)

In opposition, Plaintiff contends that the discovery “deadlines expired before Ms. Coverdale’s appearance in this matter on December 7, 2023.” (Opposition, 1-2:28, 1; see also Exhibit A, Notice of Change of Handling Attorney.) Plaintiff contends Defendants were not diligent in filing this motion four weeks after the missed deadline. (Id., 4:18-19.) Further, Plaintiff contends he will be prejudiced if discovery is reopened, as Defendants were actively litigating the case during the time the deadlines were missed and granting this motion would give a strategic advantage without good cause. (Id., 4-5, 27-28, 1-2.)

There are four factors to consider in reopening discovery: (1) the reasons for the discovery, (2) the diligence of the party seeking the discovery, (3) the likelihood the discovery motion will prevent the case from going to trial on the date set, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

Here, Defendants show the reason for discovery is to designate their experts and conduct an examination of Plaintiff by their expert. Defendants contend that they acted diligently by reaching out to Plaintiff’s counsel a few days after the missed expert designation deadline and filed this motion a month later. Defendants filed and was granted a motion to continue prior to bring this motion; trial is May 7, 2024. Defendants have provided availability for their expert to conduct the examination of Plaintiff.

The Court in reviewing these facts, in addition to Defendants’ contention the missed expert designation was due to attorney error as lead counsel as out of office the week it was due, the Court finds Defendants have established the need to reopen discovery based on the factors, Defendants reached out to opposing counsel after the missed deadline promptly and filed this motion when discussions with opposing counsel proved to not be fruitful. Further, trial was continued before this month, with four months left for the discovery to be conducted and concluded.  Defendants have shown that the requirements of sections 2024.050 and 2034.720 are satisfied.

Therefore, in consideration of the above, the motion is GRANTED.

CONCLUSION

The Court GRANTS Defendants’ motion to reopen discovery.  All discovery deadlines are reset based on the current trial date.

Moving Party to provide notice.