Case Name: Amar Rattu, et al. v. Accor Lodging North America, Inc., et al.
Case No.: 2014-1-CV-261005

Currently before the Court are: (1) the motion by plaintiffs Amar Rattu (“Amar”) and Kuldip Rattu (collectively, “Plaintiffs”) to reopen discovery; and (2) the motion by Amar to compel defendant Amrita Parag (“Parag”) to provide responses to form interrogatories, set one (“FI”), special interrogatories, set one (“SI”), and requests for production, set one (“RPD”), and for an award of monetary sanctions.

Factual and Procedural Background

This is a personal injury action. On February 21, 2014, Plaintiffs filed a complaint against defendant Accor Lodging North America, Inc. (“Accor”), Parag, defendant Monument Security, Inc. (“Monument”), defendant Albert Brown (“Brown”), and defendant Alfredo Wright (“Wright”), alleging causes of action for: (1) negligence; (2) intentional tort; (3) premises liability; and (4) loss of consortium.

On May 1, 2014, Accor was dismissed from the lawsuit.

That same day, Plaintiffs filed a first amended complaint (“FAC”) against defendant G6 Hospitality Properties, LLC (“G6 Hospitality”), Parag, Monument, Brown, and Wright (collectively, “Defendants”).

According to the allegations of the FAC, Plaintiffs were invitees in the lobby of Motel 6 in San Jose, California on October 9, 2012. (Complaint, ¶ GN-1.) Motel 6 is allegedly owned, managed, and operated by G6 Hospitality, Parag, Monument, and Brown. (Ibid.) Additionally, Brown was a security guard from Monument, who was tasked with providing security services at the Motel 6. (Ibid.)

While Plaintiffs were in the lobby, Wright began to make threatening gestures. (Complaint, ¶ GN-1.) Wright also touched Plaintiffs without their consent with the intent to harm or offend them. (Id. at ¶ IT-1.) “Despite the heightened foreseeability provided by [Wright’s] actions, [G6, Parag, Monument, and Brown] failed to take any steps whatsoever to separate [Wright] from Plaintiffs or otherwise intervene to protect Plaintiffs from attack.” (Id. at ¶¶ GN-1 & Prem. L-1.) “Even after intervention by [Brown], [Brown] abandoned the intervention, which resulted in an additional attack upon Plaintiffs.” (Ibid.)

Based on the foregoing allegations, Plaintiffs allege causes of action against Defendants for: (1) negligence; (2) intentional tort; and (3) premises liability.

After the filing of the FAC, G6 Hospitality, Parag, Monument, and Brown filed answers to the FAC.

On May 23, 2017, approximately three years after the filing of the FAC, the court held a trial setting conference. At that trial setting conference, the Court initially set the case for trial on September 11, 2017.

On August 30, 2017, the court approved a “Stipulation To Continue Trial And Trial Related Dates; And Order,” which vacated the September 11, 2017 trial date as well as “all prior statutory discovery and trial deadlines currently in effect based on the current trial date of September 11, 2017 … .” The court order provided that the statutory discovery and trial deadlines would be “reset to reflect the new trial date selected” at a later trial setting conference.

Thereafter, Monument filed a “Notice of Stay of Proceedings” on September 21, 2017, advising that the lawsuit was automatically stayed as to Monument because it filed for bankruptcy on February 1, 2017.

On July 16, 2018, approximately ten months after the “Notice of Stay of Proceedings” was filed, Plaintiffs filed a motion for relief from stay in the bankruptcy action. Plaintiffs’ motion was granted on August 22, 2018.

Another trial setting conference was held in this action on September 4, 2018, at which time the case was set for trial on January 28, 2019.

About two months later, on November 8, 2018, G6 Hospitality filed a “Notice of Unavailability,” stating that its counsel would not be available from December 21, 2018 through January 3, 2019.

Subsequently, on November 28, 2018, Amar served Parag with the FI, SI, and RPD and G6 Hospitality with a supplemental request for production of documents. (Cutting Dec., Ex. 3.)

Between December 7 and 10, 2018, the parties disclosed their expert witnesses. (Cutting Dec., 7; Pardo Dec., Ex. Z.)

On December 14, 2018, Plaintiffs served deposition subpoenas for personal attendance on the following witnesses: Timothy Windes; Robert Sanchez; Paul O’Neal; Michael Brower; James Amorosia; David Yusuf; and Alan Rabinowitz. (Cutting Dec., Ex. 5.) On the same day, Plaintiffs also served Brown with a deposition subpoena for personal attendance and Parag with a notice of deposition. (Ibid.; Pardo Dec., Ex. K.) These depositions were set for December 26, 27, and 28, 2018.

On December 27, 2018, Plaintiffs served G6 Hospitality, Parag, Monument, and Brown with a supplemental expert designation, designating numerous treating physicians, an economist, and a forensic examiner as experts. (Cutting Dec., Ex. 4.)

The next day, Plaintiffs served deposition notices on the following retained experts: Robert A. Gardner, CPP; Michael Diliberto III, CPA; Jim McMahon, CISSP, CPP; Ashar I. Salahuddin, M.D.; and Donald R. Huene, M.D. (Cutting Ex. 6.) Those depositions were set for January 10 and 11, 2019.

On January 15, 2019, Plaintiffs filed an ex parte application to continue the trial. Plaintiffs’ application was denied the same day. Two days later, Plaintiffs filed a second an ex parte application to continue the trial, which was denied the same day.

Plaintiffs filed a substitution of attorney on January 22, 2019, and their current counsel took over their representation.

On January 24, 2019, Plaintiffs filed a third ex parte application to continue the trial. In their application, Plaintiffs asserted that there was good cause for a continuance, in part, because they needed to finalize discovery, Defendants refused to respond to discovery, Defendants had prevented Plaintiffs from taking depositions, and Plaintiffs needed time to take various depositions. Monument and Brown opposed the motion. Later the same day, the Court granted Plaintiffs’ request to continue the trial and set the case for a trial setting conference on March 19, 2019.

On March 7, 2019, Plaintiffs filed the instant motion to compel Parag to provide responses to the FI, SI, and RPD.

The trial setting conference proceeded as scheduled on March 19, 2019, and the case was set for trial on August 12, 2019.

That same day, Plaintiffs filed the instant motion to reopen discovery.

In early April 2019, G6 Hospitality, Parag, Monument, and Brown filed papers in opposition to Plaintiffs’ motion to reopen discovery. Additionally, Parag filed papers in opposition to Plaintiffs’ motion to compel his responses to the FI, SI, and RPD.

Subsequently, Monument and Brown filed a joinder to G6 Hospitality and Parag’s joint opposition to the motion to reopen discovery.

Most recently, Plaintiffs filed a reply in support of their motion to reopen discovery.

Discussion

I. Motion to Reopen Discovery

Pursuant to Code of Civil Procedure section 2024.050, Plaintiffs move to reopen discovery in order to:

(1) depose the following retained experts: Robert A. Gardner, CPP; Michael Diliberto III, CPA; Jim McMahon, CISSP, CPP; Ashar I. Salahuddin, M.D.; and Donald R. Huene, M.D.;

(2) depose the following witnesses and parties: Timothy Windes; Robert Sanchez; Paul O’Neal; Michael Brower; James Amorosia; David Yusuf; Alan Rabinowitz; and Parag;

(3) “[f]ile any and all necessary motions to compel discovery;” and

(4) designate medical expert(s) and/or life care planning expert(s).

(Ps’ Mtn. Reopen Disc., pp. i:24-ii:3.)

A. Legal Standard

As a general matter, discovery proceedings must be completed 30 days before, and discovery motions heard no later than 15 days before, the date initially set for trial of the action. (Code Civ. Proc., § 2024.020, subd. (a).) With respect to expert witnesses, discovery proceeding must be completed 30 days before, and discovery motions heard no later than 10 days before, the date initially set for the trial. (Code Civ. Proc., § 2024.030.)

Discovery proceedings are deemed completed on the day a deposition begins, and other discovery proceedings (e.g., interrogatories) are deemed completed the day the response is due. (Code Civ. Proc., § 2024.010.) A continuance or postponement of trial does not operate to automatically reopen discovery proceedings. (Code Civ. Proc., § 2024.020, subd. (b).)

However, 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.” (Code Civ. Proc., § 2024.050, subd. (a).) In exercising its discretion to grant or deny such a motion, the court shall take into consideration any matter relevant to the leave requested, including: (1) the necessity and reasons for the discovery; (2) the diligence or lack thereof on the part of the party seeking the discovery, and the reasons that discovery was not completed earlier; (3) any likelihood that permitting the discovery 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. (Id. at subd. (b).)
B. Discovery Cut-Off

As a threshold matter, the Court first considers when discovery in this case closed.

The Court initially set the case for trial on September 11, 2017. However, on August 30, 2017, the Court vacated that trial date as well as “all prior statutory discovery and trial deadlines currently in effect based on the current trial date of September 11, 2017 … .” When it did so, the Court stated that the statutory discovery and trial deadlines would be “reset to reflect the new trial date selected” at a later trial setting conference. Thus, for purposes of determining the discovery cut-off dates in this case, September 11, 2017 is not date initially set for trial.

The Court later set the case for trial on January 28, 2019. This date is the date initially set for trial for purposes of determining the discovery cut-off dates in this case. Consequently, the parties were generally required to complete discovery proceedings by December 31, 2018, and have any discovery motions heard by January 14, 2019. (See Code Civ. Proc., § 2024.020, subd. (a).) With respect to expert witnesses, the parties were required to complete discovery proceedings by January 14, 2019, and have any discovery motions heard by January 18, 2019. (See Code Civ. Proc., § 2024.030.)

C. Merits of the Motion

1. Necessity and Reasons for Discovery

Plaintiffs assert that they seek the depositions of key witnesses, “including a defendant and the ex-director of safety and security,” and five experts because “[o]btaining this key testimony and evidence is critical in streamlining this case for trial and maximizing any potential for settlement.” (Ps’ Mtn. Reopen Disc., p. 5:18-24.) Plaintiffs also indicate that these depositions will help them “simplify and narrow the issues.” (Id. at p. 5:23-25.)

With respect to their request to designate medical expert(s) and/or life care planning expert(s), Plaintiffs state that these “experts will rely upon and condense the treatment and expected testimony of the many treating physicians that [their] former counsel intended to rely upon.” (Ps’ Mtn. Reopen Disc., p. 6:1-2.) Plaintiff further state that although the designation of their treating physicians is “sufficient for the purpose of [their] damages case, it is not judicial efficient as it will take a substantial amount of time to parade the treating physicians into court to testify to their particular treatment of Plaintiffs[ ] and what they believe the future holds for Plaintiffs.” (Id. at p. 6:2-5.) Plaintiffs assert that the sought-after experts would circumvent this process “by allowing testimony from select treating physicians and supplementing this testimony and evidence with retained medical experts.” (Id. at p. 6:5-7.)

Plaintiffs do not address the necessity of and reasons for their request to reopen discovery to “[f]ile any and all necessary motions to compel discovery.”

The Court finds that Plaintiffs have made a minimum showing of reasons why the sought-after depositions are necessary. Plaintiffs demonstrate that the depositions are of witnesses and designated experts. Consequently, information obtained during the depositions of these individuals may tend to prove or disprove some issue in the case and such information is reasonably necessary for trial preparation and to prevent surprise at trial.

However, Plaintiffs have not made an adequate showing that they need to designate medical expert(s) and/or life care planning expert(s). Plaintiffs admit that such expert testimony is not necessary for them to establish their claims. Plaintiffs merely seek to designate additional experts because it will, arguably, be more efficient to have those experts testify in place of Plaintiffs’ treating physicians. Thus, Plaintiffs have not demonstrated that designation of these additional experts is necessary.

Similarly, Plaintiffs have not established that it is necessary for discovery to be reopened so that they may “[f]ile any and all necessary motions to compel discovery.” In fact, Plaintiffs do not provide any reasoned argument explaining the necessity of such motions.

2. Diligence and Reasons Discovery Not Completed Earlier

Plaintiffs contend that they have diligently sought discovery and the sought-after discovery was not completed earlier for valid reasons. (Ps’ Mtn. Reopen Disc., pp. 6:10-7:11.) In support of their contention, Plaintiffs point out that there were “four … substitutions of attorneys for Defendants,” there was “one recent substitution of attorney for Plaintiffs,” and a bankruptcy stay was in place. (Ibid.) Plaintiffs assert that, “[w]hen the stay was lifted, Plaintiffs’ former counsel, who was tending to a family medical emergency, … propounded written discovery and noticed the requisite depositions of key witnesses and experts before the discovery cut-off.” (Ibid.) Plaintiffs argue that “the requested discovery was either ignored or made subject to unfounded objections and unavailability.” (Ibid.) Specifically, Plaintiffs assert that “Parag failed to respond to written discovery that was due on December 28, 2018, which … prevented [them] from obtaining essential information necessary to prepare for taking Defendants’ expert witness and other properly noticed depositions of percipient witnesses.” (Ibid.)

For the most part, Plaintiffs fail to demonstrate that they were diligent in conducting discovery or that they have a justifiable reason for not completing the sought-after discovery earlier. This case was originally filed on February 21, 2014, and the operative FAC was filed on May 1, 2014. Plaintiffs had approximately three and a half years to conduct discovery before Monument filed its “Notice of Stay of Proceedings” on September 21, 2017. There is no evidence in the record that Plaintiffs attempted to conduct any discovery at all during this time period. Furthermore, no adequate explanation is given for why discovery—such as the depositions of witnesses and parties, service of written discovery, and, if needed, discovery motions—was not conducted during this time period.

Plaintiffs point out that there were “four … substitutions of attorneys for Defendants,” but they do not attempt to explain how those substitutions interfered with their ability to conduct discovery, if at all.

Plaintiffs also point to the automatic stay of proceedings as a result of the filing of Monument’s bankruptcy case. But the stay caused by Monument’s bankruptcy case was not a complete stay of the entire action. The Bankruptcy Act provides that the commencement or continuation of any legal proceeding against the debtor is automatically stayed by the filing of a petition in bankruptcy, until adjudication or dismissal of the petition. (Lauriton v. Carnation Co. (1989) 215 Cal.App.3d 161, 164.) Here, Monument was the debtor and, consequently, this lawsuit was stayed with respect to Monument alone during the pendency of Monument’s bankruptcy proceedings. Plaintiffs do not explain why they did not conduct discovery as to the other defendants in this action while the stay was in place. The Court also notes that Plaintiff waited approximately ten months before they moved for relief from the stay in the bankruptcy action. For these reasons, it cannot be said the bankruptcy stay prevented Plaintiffs from conducting discovery.

Next, Plaintiffs contend that their diligence is demonstrated by the fact that “[w]hen the stay was lifted, Plaintiffs’ former counsel, who was tending to a family medical emergency, … propounded written discovery and noticed the requisite depositions of key witnesses and experts before the discovery cut-off.” A family medical emergency is certainly a justifiable reason for discovery not being completed. However, the fact that Plaintiffs’ counsel was experiencing a family medical emergency around the time the stay was lifted does not explain why Plaintiffs failed to conduct discovery during the three plus years before the stay was in effect. Similarly, it does not explain why Plaintiffs did not conduct discovery regarding Defendants other than Monument during the pendency of the stay.

Moreover, the fact that Plaintiffs propounded written discovery and noticed depositions of percipient witnesses in late-November and mid-December 2018, merely two months before the January 28, 2019 trial date, does not show that Plaintiffs were reasonably diligent. Plaintiffs had multiple years to conduct discovery, but waited until the eleventh-hour to do so. Additionally, as it was the holiday season, it is no wonder that parties, their counsel, and/or witnesses were unavailable.

Specifically with respect to the deposition of Paul O’Neal, Plaintiffs assert that “it was ordered by the court, in chambers, that Defendants agree to a stipulation to allow the suspended deposition of Paul O’Neal, [G6 Hospitality’s] former director of safety and security, to continue; however, to date, Defendants have failed to provide dates of availability and this deposition has yet to be completed.” (Ps’ Mtn. Reopen Disc., p. 7:14-24.) Plaintiffs do not present any admissible evidence of such an order. The only evidence of the order is the declaration of Plaintiffs’ counsel, who admits that she was not present when the oral order was purportedly made. Furthermore, Plaintiffs do not explain why they never moved to compel O’Neal’s continued deposition if such an order was in place. Consequently, Plaintiffs fail to establish that they pursued O’Neal’s deposition with reasonable diligence.

Next, Plaintiffs do not explain why they did not designate the sought-after medical expert(s) and/or life care planning expert(s) earlier. Plaintiffs were not prevented from designating experts in general as the record shows that Plaintiffs designated treating physicians, an economist, and a forensic examiner. The Court sees no reason why Plaintiffs could not have designated the requested medical expert(s) and/or life care planning expert(s) at the time they designated their other experts. Thus, Plaintiffs have not shown that they were reasonably diligent.

Finally, with respect to the expert depositions, the record demonstrates that the parties exchanged expert witnesses between December 7 and 10, 2018. Plaintiffs noticed the expert depositions approximately two weeks later. Those depositions were set for January 10 and 11, 2019, before the discovery cut-off date for discovery pertaining to experts. Apparently, those depositions did not go forward because Plaintiffs’ former counsel felt that it was impossible for him to obtain the discovery necessary to dispose the experts in the time allotted. In light of the fact that Plaintiffs’ former counsel was also dealing with a family medical emergency at this time, the Court finds that Plaintiffs’ efforts to take the depositions of the expert witnesses were reasonably diligent.

3. Interference with Trial Date or Result in Prejudice

Currently, trial is set for August 12, 2019, approximately four months from now. If the Court were to grant Plaintiffs’ motion to reopen discovery in its entirety, and allow Plaintiffs to take depositions of percipient witness and “[f]ile any and all necessary motions to compel discovery,” it seems likely that the requested discovery would interfere with the trial date. Such a scenario would result in prejudice to Defendants as the case has already been pending for over five years and has been set for trial on three separate occasions.

However, if discovery were reopened for the limited purpose of allowing Plaintiffs to depose the expert witnesses, this could reasonably be completed well before the August 12, 2019 trial. Moreover, it does not appear to the Court that G6 Hospitality, Parag, Monument, or Brown would suffer any prejudice as a result.

4. Time Between Trial Dates

Trial was originally set for September 11, 2017, and is currently set for August 12, 2019. Thus trial has been postponed for almost two years. The Court is concerned with the various delays in this case that have prevented the Court from reaching the substantive merits. Nonetheless, the Court does not believe that ordering discovery to reopen for the purpose of the expert depositions would interfere with the scheduled trial date. Therefore, the time between trial dates would not be affected by this additional discovery.

5. Conclusion

On balance, Plaintiffs’ motion to reopen discovery is DENIED IN PART and GRANTED IN PART.

Given Plaintiffs’ dilatory and ineffectual pursuit of discovery, in general, prior to the discovery cutoff and failure to provide any compelling reasons as to why discovery was not completed earlier, their motion to reopen discovery is DENIED as to the request to depose percipient witnesses and parties, “[f]ile any and all necessary motions to compel discovery,” and designate medical expert(s) and/or life care planning expert(s).

Plaintiffs’ motion to reopen discovery is GRANTED as to the request to depose the following retained experts: Robert A. Gardner, CPP; Michael Diliberto III, CPA; Jim McMahon, CISSP, CPP; Ashar I. Salahuddin, M.D.; and Donald R. Huene, M.D. The new cut-off dates for discovery regarding the retained experts shall be calculated based on the August 12, 2019 trial date.

II. Motion to Compel Responses to FI, SI, and RPD

Plaintiffs move to compel Parag to provide responses to the FI, SI, and RPD, and for an award of monetary sanctions.

Plaintiffs’ motion must be denied because it violates the discovery motion cut-off deadline. As explained above, the parties were generally required to complete discovery proceedings by December 31, 2018, and have any discovery motions heard by January 14, 2019. (See Code Civ. Proc., § 2024.020, subd. (a).) Plaintiffs did not file the instant motion until on March 7, 2019, and the matter is set for hearing on April 16, 2019. Consequently, the motion violates the discovery motion cut-off deadline.

Furthermore, there is no agreement between the parties to have the motion heard closer to the trial date and Plaintiffs were not successful on their motion to reopen discovery in order to “[f]ile any and all necessary motions to compel discovery.”

For these reasons, it would be an abuse of discretion for this Court to consider the present matter. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging (2008) 165 Cal.App.4th 1568, 1586-1587.) Accordingly, Plaintiffs’ motion to compel Parag to provide further responses to the FI, SI, and RPD is DENIED.

Turning to the issue of sanctions, Plaintiffs were not successful in bringing this motion and, thus, their request for sanctions is DENIED.