SUNDEE RIVERS VS AARON WERSTINE ET AL

Motion to Reopen Discovery, Compel Production, or Preclude Use of Evidence; Motion to Continue Trial

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On August 8, 2017, Plaintiff Sundee Rivers (“Plaintiff”) filed a complaint against Aaron Werstine, Kerry Werstine, and Dr. Pepper Snapple Group, Inc. (“Defendants”) alleging motor vehicle and general negligence for an automobile collision that occurred on August 13, 2015.

On October 21, 2019, Plaintiff filed a motion to reopen discovery, or in the alternative, compel production of expert reports, or in the alternative, preclude use of expert reports, and a request to continue trial.

Trial is set for December 5, 2019.

PARTY’S REQUESTS

Plaintiff asks the Court to continue the trial date and reopen expert discovery to follow that new trial date, or in the alternative, to require Defendants to produce discoverable expert documents, or in the alternative, to preclude Defendants from presenting expert testimony unless they produce their expert’s documents.

LEGAL STANDARD

Pursuant to California Rules of Court, rule 3.1332, subdivision (a), “[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Under California Rules of Court, rule 3.1332, subdivision (b), “[a] party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

California Rules of Court, rule 3.1332, subdivision (c) states that “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.”  California Rules of Court, rule 3.1332, subdivision (d) sets forth factors that are relevant in determining whether to grant a continuance.

California Code of Civil Procedure section 2024.050 allows a court to grant leave to complete discovery proceedings.  In doing so, a court shall consider matters relevant to the leave requested, including, but not limited to: (1) the necessity of the discovery, (2) the diligence in seeking the discovery or discovery motion, (3) the likelihood of interference with the trial calendar or prejudice to a party, and (4) the length of time that has elapsed between previous trial dates.  (Code Civ. Proc. § 2024.050.)

DISCUSSION

Defendants argue Plaintiff did not provide adequate notice in serving the motion by email on November 14, 2019.  (Oppositions, p. 2.)  However, the motion’s proof of service shows it was served on Defendants by U.S. mail on October 21, 2019.  As such, the Court finds Plaintiff properly served the motion on Defendants.

Plaintiff argues there is good cause to reopen expert discovery.  Defendants refuse to produce expert documents that Plaintiff is entitled to receive.  (Motion, p. 6:21-6:23.)  Plaintiff needs to take the depositions of Defendants’ expert witnesses Daniel Kaplin, M.D., Beau LeBlanc BSME, John Kennedy, and Stephen L.G. Rothman, M.D.  (Motion, p. 7:1-7:4.)  

Defendants argue that the Court’s September 10, 2019 ruling forecloses Plaintiff’s argument that there is good cause to reopen expert discovery.  (Opposition, p. 3:10-3:20.)  The Court disagrees.  In that minute order, as Plaintiff correctly observes, the Court did not reopen expert discovery when the Court continued trial because Plaintiff made the argument for the first time on reply that she needed to depose Defendants’ experts.  As such, Plaintiff is not barred from making the request now.

The Court finds there is good cause to continue trial and reopen expert discovery for Plaintiff to depose Daniel Kaplin, M.D., Beau LeBlanc BSME, John Kennedy, and Stephen L.G. Rothman, M.D.  Defendants do not argue that they will be prejudiced if this continuance and reopening of expert discovery is granted.  However, Plaintiff does argue that she will not be prepared for trial and will not know the scope of the testimony that will be offered by the defense experts without being able to take these depositions.  As such, there is good cause to reopen expert discovery.

The Court notes that there have been three prior continuances.  (Steiner Decl., ¶ 35.)  This continuance will be the fourth.  The Court’s patience draws thin with each continuance.  It becomes less and less likely that the Court will grant each subsequent continuance.  As such, the Court strongly suggests that the parties complete discovery and prepare for trial without requesting another continuance in this matter.

Accordingly, the motion is GRANTED.

The Court orders trial shall be continued to April 20, 2020 at 8:30 a.m.  The Court also orders the final status conference date shall be continued to April 6 at 10:00 a.m.  Both hearings are to be held in Department 4A of the Spring Street Courthouse, 312 North Spring Street, Los Angeles, CA 90012.

The Court extends the time for completing expert discovery for the sole purpose of allowing Plaintiff to take the depositions of Daniel Kaplin, M.D., Beau LeBlanc BSME, John Kennedy, and Stephen L.G. Rothman, M.D.  The non-expert discovery cut-off remains closed.

Plaintiff is ordered to give notice of this ruling.