PAULINE WESTAD VS KELTON F NORMAN TRUST ET AL

Tentative Rulings

Case Number: BC658861    Hearing Date: December 09, 2019    Dept: 4B

[TENTATIVE] ORDER RE: MOTION TO REOPEN EXPERT DISCOVERY

On April 21, 2017, plaintiff Pauline Westad filed this action against defendants Kelton F. Norman Trust and Kelton F. Norman as Trustee of the Kelton F. Norman Trust (collectively, “Defendants”). On October 4, 2018, Plaintiff finally served Defendants with the complaint and summons. On October 5, 2018, Plaintiff made an ex parte application to continue the trial due to her counsel’s engagement in a lengthy trial. Plaintiff asked for a year, which the Court granted, continuing the trial from October 22, 2018 to October 22, 2019. The Court did not re-open discovery in the absence of a noticed motion or stipulation. (Plaintiff appears not to have given Defendants proper notice of the ex parte application. Plaintiff’s ex parte application states the process server gave notice, apparently when the process server served the complaint and summons the previous day. But the process server’s proof of service of summons states service took place at 11:49 a.m., after the 10 a.m. cutoff for ex parte notice.)

Defendants first appeared and filed an answer on November 13, 2018. Defendants state that thereafter, the parties conducted discovery, and Plaintiff did not advise Defendants that discovery had closed. At some point, Defendant served a demand for exchange of expert information. On September 3, 2019, Plaintiff designated her experts.

Also on September 3, 2019, the parties submitted a stipulation to continue the trial date from October 22, 2019 to March 16, 2020 and to continue all related dates. The Court rejected the stipulation because the trial had already previously been continued once before for more than six months.

On September 26, 2019, Defendants filed an ex parte application to continue the trial date. Plaintiff opposed Defendants’ ex parte application, stating that while she agreed to continue the trial date and non-expert discovery, she opposed continuing the expert designation deadline or time to file a motion for summary judgment. The Court granted in part Defendants’ ex parte application in part. Based on the fact that both parties wanted the trial date continued to March 16, 2020 and non-expert discovery deadlines to be based on the new March 16, 2020 trial date, the Court granted the ex parte application to that extent. Due to Plaintiff’s opposition, the Court stated a noticed motion was necessary to reopen expert discovery.

On November 12, 2019, Defendants filed this motion to reopen expert discovery.

On a motion of any party, the court may reopen discovery after a new trial date has been set. The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (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, 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.” (Code Civ. Proc., § 2024.050, subd. (b).)

Defendants argue they first appeared after the original continuance was granted. Defense counsel did not know about the original continuance and mistakenly thought the October 22, 2019 trial date was the initial trial date. Therefore, defense counsel believed the Court would accept the September 3, 2019 stipulation continuing the trial and all related dates. Defense counsel states that only after the Court rejected the stipulation in September 2019 did counsel realize there had been a previous continuance. Defendants argue that because Plaintiff previously stipulated to continue the discovery cutoff dates, expert discovery should be re-opened. Defendants also argue that Plaintiff designated her experts in September 2019 after expert discovery had closed.

In opposition, Plaintiff argues that Defendants did not timely serve Plaintiff because the motion was delivered to the wrong office suite. Plaintiff’s counsel does not state when she received the motion papers, but if she needs additional time to oppose the motion, she should state when she received the papers and request a continuance to allow her the full amount of notice. Plaintiff also argues about the stipulations and prior demand for expert exchange.

Plaintiff seems to be arguing that she can present her experts, even though she designated them in September 2019 after expert discovery had closed, but Defendants should not be allowed to designate any experts because expert discovery is closed and has not been reopened. That is fundamentally unfair. Due to the amount of time Plaintiff took to serve Defendants, Defendants did not appear until after the initial trial date case, after the first continuance, and after expert discovery closed. Because the expert discovery cutoff had already passed when Defendants first appeared, they have technically had no opportunity to conduct expert discovery.

Once Defendants realized in September 2019 that expert discovery was closed, they took steps to reopen it. The trial date in this case has already been continued, so reopening expert discovery will not prevent trial from going forward on the current trial date. Allowing Defendant to conduct expert discovery is not prejudicial to Plaintiff; it is a fundamental part of most cases.

Accordingly, Defendants’ motion to reopen expert discovery and is GRANTED. The expert discovery dates are based on the current trial date. In addition, if Plaintiff is contending that Defendants should not be allowed to file and argue a summary judgment motion based on the new trial date, that argument is rejected.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative. The Court will be dark on December 9, 2019. A party requesting argument should contact Dept. 4B for an alternate hearing date.