NORAH DEBELLIS ET AL VS CITY OF TORRANCE ET AL

Tentative Rulings

Case Number: BC646268    Hearing Date: March 03, 2020    Dept: SWB

Hearing Date: March 3, 2020

Moving Parties: Defendant La Terrazza HOA

Responding Party: Plaintiff Norah Debellis

Motion for Order Reopening Limited Discovery

The court considered the moving, opposition, and reply papers.

RULING

The motion to reopen discovery is GRANTED for the limited purpose of having plaintiff submit to an IME as to her vision problems. Parties to meet and confer re specification of the person who would perform the examination, the manner, diagnostic tests and procedures, conditions, scope, and nature of the examination, as is required under CCP §2032.320.

BACKGROUND

On January 9, 2017, plaintiffs Norah Debellis and Eric Debellis filed a complaint against defendants City of Torrance and La Terrazza Homeowners Association (“La Terrazza”) for premises liability, dangerous condition of public property, and loss of consortium based on a trip and fall on a sidewalk on October 29, 2015.

On April 20, 2017, La Terrazza filed a cross-complaint against City of Torrance for contribution and indemnity.

On May 5, 2017, City of Torrance filed a cross-complaint against La Terrazza.

On May 14, 2018, La Terrazza filed an amended cross-complaint.

On July 30, 2018, City of Torrance filed an amended cross-complaint.

Trial is set for March 25, 2020.

LEGAL AUTHORITY

CCP §2024.050 states: “(a) On motion of any party, the court may grant leave 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.

(c) 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.”

DISCUSSION

Defendant requests an order reopening discovery to allow defendant to seek an order permitting an additional IME of plaintiff for the purpose of evaluating her vision complaints. Discovery closed on July 3, 2019. Defendant requests that the IME be ordered for March 6, 2020 at Doheny Eye Institute.

As to § 2024.050(b)(1), the necessity and reasons for the discovery, defendant contends that on January 17, 2020, at the mediation, defendant discovered that plaintiff recently had undergone testing and treatment by a neuro-ophthalmologist for an eye condition that plaintiff is claiming was caused by the trip and fall incident. Defendant asserts that plaintiff’s claim is a significant change in the posture of the case.

As to (2), defendant contends that it was diligent in seeking discovery from plaintiff, but that plaintiff had not seen the neuro-ophthalmologist until after discovery had closed, first on July 10, 2019 and again on September 20, 2019, and that plaintiff did not disclose the new treatment until January 17, 2020. Defendant explains that at her deposition in August 2017, plaintiff testified that she was experiencing “vision problems” but that her “eye health is fine” and that her eyes are healthy and that the records reflected plaintiff’s complaints as being related to her need for glasses/adjustment to the glasses.

In opposition, plaintiff argues that defendant has not been diligent in bringing this motion and that good cause does not exist to order a third defense medical examination because defendant has known since August 24, 2017, from the time of plaintiff’s deposition that plaintiff was having serious problems with her vision as a result of the accident. Further, defense counsel has had plaintiff’s medical records since December 2018 from plaintiff’s eye doctor indicating that plaintiff was suffering from blurry vision as a result of the accident. Plaintiff asserts that she provided a significant amount of testimony regarding the problems she was having with her vision as a result of the accident. Moreover, she contends, her supplemental responses served on September 13, 2019 identified vision problems that she attributes to the incident and that her vision problems were getting worse.

As to (3), defendant argues that reopening discovery for the limited purpose will not prejudice any party. In opposition, plaintiff argues that she will be prejudiced because she will be forced to take time out from work with little or no notice to her employer. Further, any report from a late IME will make analysis by plaintiff’s experts extremely difficult if not impossible and much more expensive.

As to (4), the length of time that has elapsed between the original trial date and the current trial date, plaintiff points out that on July 3, 2019, the court continued trial to March 2020 by stipulation and that discovery would not be reopened.

The court finds that since August 2017, defendant was aware that plaintiff was claiming vision problems as a result of the incident. However, it appears that plaintiff’s vision problems have worsened and have become more severe. Further, after the discovery cut-off, plaintiff served supplemental responses with additional detail as to her vision problems and she treated with Dr. Ron Gallemore on July 10, 2019 and September 20, 2019.

Thus, the court finds good cause for reopening discovery for the limited purpose of having plaintiff submit to an IME as to her vision problems. The court, however, is unable to order plaintiff to submit to an IME in this order because defendant has not specified the person who would perform the examination, the manner, diagnostic tests and procedures, conditions, scope, and nature of the examination, as is required under CCP §2032.320.

The motion to reopen discovery is GRANTED.

Defendant is ordered to give notice of the ruling.