Case Number: BC616366 Hearing Date: March 22, 2018 Dept: 97

Superior Court of California
County of Los Angeles
Department 97

DAvid Haines, et al.,

Plaintiffs,

v.

Officemax Contract Inc., et al.,

Defendants.

Case No.: BC616366

Hearing Date: March 22, 2018

[TENTATIVE] order RE:

Defendants’ MOTION TO CONTINUE TRIAL

Defendants Office Depot, Inc. and Richard Navarez (“Defendants”) seek to continue the final status conference, trial, and all trial related dates in this action. The FSC is currently set for April 9, 2018, and trial is set for April 23, 2018.

Defendants seek to continue the trial and all related dates for several reasons. First, Plaintiff David Haines (“Plaintiff”) underwent spinal surgery on January 24, 2018, and Defendants’ orthopedic surgeon, Natin Bhatia M.D., was not able to perform the scheduled Independent Medical Examination (“IME”) of Plaintiff because of this surgery. Defendants contend that they were never told the date of the surgery by Plaintiff’s counsel, and thus picked a date for the IME “blindly.” Dr. Bhatia opines that he attempted to complete the IME on February 15, 2018, but was unable to test and examine the entire cervical spine because of the recent spinal surgery. (Def. Motion, Exh. A, Bhatia Decl., at ¶¶ 2-4.) In order to perform “a full and necessary examination,” Dr. Bhatia needs to schedule a follow up IME “at least six months after surgery, on or after September 1, 2018.” (Id. at ¶ 5.)

Second, Defendants contend that Plaintiff’s life care planning expert Carol Hyland has been unable to be deposed because of an injury that she sustained. Defendants state in the reply that Ms. Hyland is not able to travel to Southern California until after April 9, 2018. (Dukes Decl., at ¶ 2.) Third, Defendants state that they will be severely prejudiced if the trial is forced to go forward on April 23 because Plaintiff may need to wear a neck brace as a result of the January surgery. Finally, Defendants contend that Plaintiff disclosed many new fact witnesses on December 15, 2017 without proper time to depose those fact witnesses. (Dukes Decl., at pg. 2.) At the time of this disclosure, the discovery cutoff date was December 18, 2017. At the hearing on February 22, 2018, Plaintiff’s counsel represented that he would make these witnesses available for deposition. (Pl. Opp., Exh. C, at pg. 10:8-18.) Defendants state that no depositions dates for any of these witnesses have since been provided, and that three further fact witnesses have been disclosed on March 7, 2018. (Dukes Decl., at pg. 3.)

In opposition, Plaintiff requests that the trial not be continued. Plaintiff argues that there is insufficient cause to support this continuance, especially in light of the fact that this is the forth trial continuance in this case. First, Plaintiff states that he will be harmed financially if the continuance is allowed to move forward. Plaintiff contends that he has not been able to work since the incident and that he is living off of loans, and the interest rates on those loans will go up after May of 2018. (Pl. Opp., at pg. 5.) However, Plaintiff provides no evidence to support these claims of financial peril. Second, Plaintiff argues that he will be prejudiced by continuing trial because his trial counsel may not be available, depending on what date the trial is continued to. Plaintiff contends that another trial continuance could “put the attorney-client relationship . . . at extreme peril.” (Id. at pg. 7.) Once again, Plaintiff provides no evidence, in the form of declarations or otherwise, to support these claims.

Third, Plaintiff states that the IME by Dr. Bhatia is unnecessary. Plaintiff contends that Dr. Bhatia’s report states that the Plaintiff’s injuries were just sprains and that the spinal surgeries were not related to the subject collision. Plaintiff further contends that “Dr. Bhatia told Kathryn Arnold that all of his opinions were final.” (Pl. opp., at pg. 5.) However, Plaintiff provides no evidence from an expert stating that the IME by Dr. Bhatia is medically unnecessary or that any post-operation examination should be done in a shorter time frame than Dr. Bhatia suggests. Finally, Plaintiff argues that if trial is continued then discovery should remain closed. Plaintiff contends that “the real reason” for this continuance is so that the newly associated trial counsel firm may redo discovery. (Id. at pg. 7.)

Based on the above arguments by both parties, the Court finds that Defendants’ need to pursue discovery outweighs the concerns raised by Plaintiff. Based on the argument and evidence presented by Defendants, the Court finds good cause to continue the trial.

Defendants also request to reopen discovery and continue all discovery and motion cutoff to tie to the new trial date. The Court finds that there is good cause shown to allow discovery to be reopened. Plaintiff did not disclose key fact witnesses under Form Interrogatory 12.1 to Defendants until 3 days before discovery was originally cut off. Form Interrogatory 12.1 requires the responding party to identify anyone who witnessed the incident or heard any statements about the incident. As Plaintiff has identified several new witnesses in response to this interrogatory, the Court finds that Defendants have shown that fact discovery needs to be reopened. Further, the need for the IME, and the deposition of Carol Hyland show that expert discovery needs to remain open as well. Therefore, the Court will allow the reopening of discovery and allow all discovery and motion dates to be tied to the new trial date.

However, the Court denies Defendants’ request to allow late designation of experts. The moving papers did not clearly request permission for the late designation of experts. Instead, it was not until Defendants filed a supplemental declaration on the same date as their reply that Defendants signaled their intent to include expert designation as one of the dates that would be continued with the new trial date. Defendants must bring a separately noticed motion if they wish the Court to consider this request. Including this request in a supplemental declaration filed concurrently with the reply does not give Plaintiff an adequate opportunity to respond. It also does not provide the Court with an adequate basis to determine the issue of late designation of experts. Accordingly, the motion to allow the late designation of experts is denied without prejudice.

Conclusion and Order

Defendants’ request to continue the trial is granted based upon good cause shown. The requested date of September 17, 2018 cannot be accommodated by the Court. Therefore, the trial will be continued to September 19, 2018 at 8:30 am, and the FSC will be continued to September 5, 2018 at 10:00 am. All discovery and motion cut off dates, except for the designation of experts, will follow the new trial date.

Defendants are ordered to provide notice of this order.

DATED: March 22, 2018 ___________________________

Elaine Lu

Judge of the Superior Court