2015-00178467-CU-PA

Rosary Castaneda El-Amin vs. Med Alert Medical Transport

Nature of Proceeding: Motion to Reopen Discovery

Filed By: Smith, Robin J.

Plaintiff’s unopposed motion to reopen discovery is granted.

This motion was placed on today’s calendar after the Court granted Plaintiff’s ex parte application for an OST on May 14, 2018. Trial is set for June 4, 2018.

In this personal injury action Plaintiff alleges that she must use a wheelchair and that she hired Defendant Med Alert Medical Transport to transport her from her home to the doctor’s office and back. Plaintiff alleges that she suffered injuries when Defendant’s employee failed to secure her wheelchair and she fell out. Defendant Hermillo Delima is the owner of Med Alert. Plaintiff claims that in his discovery responses and in deposition, Mr. Delima identified the driver of the van as Ken Ebarle. Plaintiff also claims that Mr. Delima indicated that he was unable to identify which of its five vans in which Plaintiff was a passenger on the day in question. On May 7, 2018,

Plaintiff received Mr. Delima’s final discovery responses. Plaintiff asserts that Defendant changed his previous answers and now identified the driver of the van as Victor Chauppte and indicated that he can now identify the van in question. Plaintiff now seeks to reopen discovery for the limited purpose of taking the deposition of Victor Chauppte and Mr. Delima as to why his discovery responses changed.

For good cause, 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. (CCP § 2024.050(a).) In making such a finding, the Court considers the necessity and reasons for the discovery, the diligence of the party seeking the discovery, the likelihood that allowing the discovery will prevent the case from going to trial, the length of time between the previous trial date and the date presently set. (CCP § 2024.050(b).)

Defendant filed a declaration indicating that he does not oppose Plaintiff’s request to reopen discovery for the limited purposes sought.

Here, all the factors support reopening discovery for the limited purpose requested by Plaintiff and Defendant has not opposed the request.

As a result, the motion is granted. Discovery is reopened for the limited purpose of allowing Plaintiff to take the deposition of Mr. Chauppte, the newly identified driver of the van, in addition to taking Defendant’s deposition to inquire as to why Defendant’s discovery responses changed. The parties shall meet and confer on the date, time and location of the depositions. Given the June 4, 2018 trial date, the depositions shall be completed no later than June 2, 2018.

This minute order is effective immediately. No formal order pursuant to CRC rule 3.1312 or other notice is required.

Item 3 2015-00178467-CU-PA

Rosary Castaneda El-Amin vs. Med Alert Medical Transport

Nature of Proceeding: Motion to Compel Inspection

Filed By: Smith, Robin J.

Plaintiff’s unopposed motion to compel inspection is granted.

This motion was placed on today’s calendar after the Court granted Plaintiff’s ex parte application for an OST on May 14, 2018. Trial is set for June 4, 2018.

In this personal injury action Plaintiff alleges that she must use a wheelchair and that she hired Defendant Med Alert Medical Transport to transport her from her home to the doctor’s office and back. Plaintiff alleges that she suffered injuries when Defendant’s employee failed to secure her wheelchair and she fell out. Defendant Hermillo Delima is the owner of Med Alert. Plaintiff claims that in his discovery responses and in deposition, Mr. Delima identified the driver of the van as Ken Ebarle. Plaintiff also claims that Mr. Delima indicated that he was unable to identify which of its five vans in which Plaintiff was a passenger on the day in question. On May 7, 2018, Plaintiff received Mr. Delima’s final discovery responses. Plaintiff asserts that Defendant changed his previous answers and now identified the driver of the van as

Victor Chauppte and indicated that he can now identify the van in question.

Plaintiff indicates that she served a demand for inspection with respect to all five of Defendant’s vans. Defendant objected to the van and only agreed to produce a single van for inspection. According to Plaintiff that van was not the one in which she was a passenger.

Defendant filed a declaration indicating that he does not oppose Plaintiff’s demand to produce all five vans.

The motion is therefore granted.

Plaintiff’s request for sanctions is denied as the motion was unopposed on the merits. Although California Rules of Court, Rule 3.1348 purports to authorize sanctions if the motion is unopposed, the Court declines to do so, as the specific statutes governing this discovery authorize sanctions only if the motion was unsuccessfully made or opposed. Any order imposing sanctions under the C.R.C. must conform to the conditions of one or more of the statutes authorizing sanctions. Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 355. However, repeated conduct of failing to comply with discovery obligations may lead the Court to find an abuse of the discovery process and award sanctions on that basis. Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal. App. 3d 481.

In any event, even if the motion were considered to have been opposed, the Court would find that sanctions would be unjust under the circumstances.

Given the upcoming trial date, the inspection shall be completed no later than June 2, 2018. The parties shall meet and confer on the time and place of the inspection.