Case Number: BC558076 Hearing Date: February 01, 2017 Dept: 58

Hearing Date: Wednesday, February 1, 2017
Calendar No: 11
Case Name: Andrew C. v. Marcano, et al.
Case No.: BC558076
Motion: Application to Continue Hearing on Motion for Summary Judgment and to Compel Deposition
Moving Party: Plaintiff Andrew C.
Responding Party: (1) Defendants Bertrand A. Marcano, M.D., Inc. and Bertrand A. Marcano, M.D.
(2) Defendant Allied Healthcare Products, Inc.

Tentative Ruling: Application is granted in part. The hearing on the motion for summary judgment is continued to 3/23/17. Plaintiff’s application to essentially further continue the hearing on the motion for summary judgment pursuant to CCP § 437c(h) (beyond 3/23/17) and Plaintiff’s motion to compel a second deposition session of Dr. Marcano are continued to 2/27/17. See discussion below.
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On 9/18/14, Plaintiff Andrew C. filed this action against various defendants arising out of personal injuries resulting from a 9/18/11 medical circumcision procedure performed by Defendant Bertrand A. Marcano, M.D. while using a circumcision clamp. Plaintiff asserts causes of action for (1) medical malpractice, (2) strict products liability, (3) negligent product liability, and (4) breach of implied and express warranty. On 9/30/16, this action was assigned to this Court. On 11/15/16, the Court denied Plaintiff’s motion for terminating, issue, evidentiary, and monetary sanctions arising out of Dr. Marcano’s disposal of the clamp. Trial is set for 8/28/17; FSC for 8/17/17. Defendant Allied Healthcare Products, Inc. (alleged to be a manufacturer or distributer of the clamp) has filed a motion for summary judgment that was previously set for hearing on 2/15/17. Post-mediation status conference and an all-purpose status conference were previously set for the same date.

Application to Continue Hearing and to Compel Deposition –
Plaintiff seeks to continue the hearing on Allied’s motion for summary judgment and to compel a second deposition session of Dr. Marcano, submitting that Plaintiff wishes to file an amended complaint (which plaintiff’s counsel has reserved for hearing on 2/27/16), and that Dr. Marcano’s previous deposition was noticed by Allied and Plaintiff’s counsel sent an inexperienced attorney who was not prepared for Dr. Marcano’s unexpected admission to destruction of the clamp.

In opposition, Dr. Marcano argues there is no good cause for his second deposition (CCP § 2025.610), and Allied argues that Plaintiff has failed to comply with CCP § 437c(h) for a continuance of the hearing on the motion for summary judgment because Plaintiff has failed to indicate what essential facts necessary to effectively oppose the motion are to be obtained from the proposed discovery (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 715), and further that Plaintiff has not acted diligently (see Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257).

After review, the Court grants the application in part as follows. The hearing on the motion for summary judgment is continued to 3/23/17 and shall be briefed pursuant to the code. Plaintiff’s (i) application which under the circumstances has essentially become an application to further continue (beyond 3/23/17 if a second deposition session of Dr. Marcano is permitted) the hearing on the motion for summary judgment pursuant to CCP § 437c(h) and Plaintiff’s (ii) motion to compel a second deposition session of Dr. Marcano are continued to 2/27/17, the same day on which Plaintiff’s proposed motion for leave to amend was previously set to be heard.

Thus, the timeline on the currently pending/proposed motions herein is as follows:

1.) March 23, 2017, 8:30 a.m. The Motion for Summary Judgment is continued to 3/23/17 to permit the orderly determination prior thereto of plaintiff’s Motion to Compel a second session of the Dr. Marcano deposition, the outcome of which Motion to Compel might be a factor necessarily requiring the continuance of the subject MSJ hearing beyond 3/23/17 in order to provide the parties with adequate time to schedule, take, report and utilize that proposed second session of the Marcano deposition in connection with the MSJ, in support thereof perhaps and/or in opposition thereto. If the MSJ remains set for hearing on 3/23/17, the motion will be briefed pursuant to the code.

2.) February 27, 2017, 8:30 a.m. The Motion to Compel a second session of the Dr. Marcano deposition will be heard on 2/27/17. IF the motion is denied, the likelihood is that the subject MSJ will remain set for hearing as indicated above on 3/23/17, in which event the motion can be briefed pursuant to the code. IF the motion is granted and a second session of the Dr. Marcano deposition is permitted, the Court will expect that deposition to be scheduled and taken forthwith. However, even given the anticipated due diligence of counsel in this event in getting the subject deposition completed timely, it would appear that the proposed need to make the testimony obtained a part of the opposition to the MSJ motion would likely require a hopefully relatively short continuance of the MSJ hearing from 3/23/17 to another date perhaps in April. To this extent, the issue of whether the MSJ hearing now set for 3/23/17 might be continued further depends in part on whether there will be a second session of the Dr. Marcano deposition and the amount of time required to obtain deposition transcripts and perhaps insert part of that testimony one way or another into the offers of proof in support of and/or in opposition to the MSJ motion.

The papers previously filed in support of and in opposition to plaintiff’s January 27, 2017 ex parte application (Motion to Compel Dr. Marcano deposition and Motion to Continue MSJ hearing date) were on January 27, 2017 deemed to have been received by the Court on those motions. Plaintiff is hereby ordered to file a Supplemental Brief in support of the motions underlying the ex parte application on or before 3:00 p.m. on February 6, 2017. Supplemental opposition papers and reply papers shall be filed and served pursuant to the code, with electronic service to be provided, and with courtesy copies of the papers to be delivered to Dept. 58 on the respective dates at or before 3:00 p.m.

3.) February 27, 2017. The proposed Motion for Leave to Amend was previously noticed to be heard on February 27, 2017, shall remain on calendar that day, and shall be briefed pursuant to the code.

Summary
2/27/17 Motion to Compel Dr. Marcano Deposition
Motion to Further Continue MSJ Hearing
Motion for Leave to Amend

3/23/17 Motion for Summary Judgment hearing (unless the hearing is continued further depending on the outcome of the motion to be heard on 2/27/17)