Judge: Anne Hwang, Case: 22STCV05550, Date: 2023-08-23 Tentative Ruling

Case Number: 22STCV05550    Hearing Date: August 23, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Kevin MacDonough (“Plaintiff”) moves to re-open discovery for the limited purpose of allowing the Court to make a determination on Plaintiff’s Motion to Compel the Deposition of Defendant Paramount Logistic Inc’s Person Most Qualified (“PMQ”) regarding hiring, safety, and training and to subsequently depose the PMQ as well as complete related discovery.  Defendants Paramount Logistics, Inc. (“Paramount”) and Tito Chavez (collectively, “Defendants”) untimely opposed the motion.

ANALYSIS

As a preliminary matter, while Defendants’ opposition was filed two court days beyond the statutory deadline, the Court shall consider it because Defendant has not been prejudiced by this delay. (Cal. Rules of Court, Rule 3.1300(d).)

In this case, trial is currently set for December 14, 2023, which the Court set pursuant to the ex parte application filed by Plaintiff.  (See July 20, 2023 Minute Order.)  However, all non-expert discovery and pre-trial motion cut off dates remained associated with the previously set August 14, 2023 trial date. (Ibid.)

In determining whether to reopen discovery, the court must consider the necessity of and reasons for the additional discovery, the diligence or lack thereof by the party seeking to reopen discovery in attempting to complete discovery prior to the cutoff, whether permitting the discovery will prevent the case from going forward on the trial date or will otherwise prejudice any party, and any past continuances of the trial date.  (See Code Civ. Proc., § 2024.050, subd. (b).)

Here, Plaintiff seek to reopen discovery for the limited purpose of taking the deposition of Paramount’s PMQ on the issues of negligent entrustment and negligent retention/hiring and related discovery.[1] Counsel advances the declaration of his counsel, Esteman Espinosa-Ulloa (“Counsel”).  Counsel states Plaintiff served a Notice of Taking Deposition of PMQ Regarding Hiriing, Safety, and Training for Paramout and Reqeust for Production.  (Ulloa Decl. ¶  3, Exh. 1.)  Paramount objected to this deposition notice on the ground that Defendant Tito Chavez admitted that he was acting under the course and scope of employement when the accident occurred, and as a result, there was no need to produce the PMQ. (Id. at ¶ 4, Exh. 2.) Plaintiff attempted to meet and confer on this issue without success. (Id. at ¶ 5, 14, Exhs. 3, 8.) Thereafter, Paramount also objected to Plaintiff’s June 23, 2023 Demand to Produce PMQ and Production of Documents at Trial for the same reason. (Id. at ¶¶ 6-7, Exhs. 4-5.) Plaintiff asserts that there is good cause to take the deposition of Paramount’s PMQ because it is directly related to the issues of negligent entrustment and negligent retention/hiring. (Motion at pg. 5.) Plaintiff rejects the argument that Defendant Tito Chavez’s admission closes the door to relevant information because the issue of whether such discovery is admissible at trial is immaterial. (Ibid.) Rather, this discovery would be relevant for Plaintiff to assess the viability of his claim for negligent entrustment and negligent retention/hiring. (Id. at pg. 6.) Despite Plaintiff’s diligence in seeking to depose Paramount’s PMQ and there being good cause to do so, Counsel avers that Paramount has refused to stipulate to the requested relief. (Id. at pp. 6, 7-8; Ulloa ¶¶ 3-6, 8-9, 11, 14.)

In opposition, Defendants argue that Plaintiff has not shown the necessity for reopening discovery because the deposition of Paramount’s PMQ is not relevant considering Defendant Tito Chavez admitted to be acting within the course and scope of his agency with Paramount at the time of the incident, and Paramount does not contest this issue. (Opposition at pp. 5-6, relying on Diaz v. Carcamo (2011) 51 Cal.4th 1148.)  Thus, because the issue of vicarious liability is not at issue in this case, any related evidence is not relevant and inadmissible. (Id. at pg. 5, relying on Evid. Code §§ 210, 350.) As a result, Defendants reason that the discovery that Plaintiff seeks is not relevant or necessary. Furthermore, Defendants argue that Plaintiff has been dilatory in seeking to depose Paramount’s PMQ despite having been provided ample prior discovery before the cut-off date. (Opposition at pg. 7.)

In reply, Plaintiff maintains that good cause has been established, and he argues that Defendants’ reliance on Diaz is inapplicable because the case does not stand for the proposition of limiting the scope of discovery relating to the issue of negligent entrustment and negligent hiring/retention. (Reply at pp. 3-4.) Furthermore, Plaintiff argues that he acted with diligence because Plaintiff attempted to informally resolve this discovery issue for over three months and only sought court intervention when all other remedies were exhausted. (Id. at pp. 4-5.) Lastly, because trial has been continued, reopening discovery at this juncture will not prevent the case from going to trial. (Reply at pg. 6.)

The Court finds that Plaintiff has not met his burden under Code of Civil Procedure § 2024.050 to show that reopening discovery is warranted. Significantly, Plaintiff does not dispute that Paramount has stipulated to vicarious liability and that the requested PMQ deposition only covers topics within the scope of that stipulation. In this instance, Plaintiff seeks to compel Paramount’s PMQ because the testimony is “directly related to the issues of negligent entrustment and negligent retention/hiring” and will “allow Plaintiff to assess the strengths of his claims of negligent entrustment and negligent retention/hiring.” (Motion at pg. 6.) However, considering that Plaintiff does not dispute that Paramount has accepted liability for its employee’s conduct, the issue of determining Plaintiff’s negligent entrustment claim is now moot. Thus, as in Diaz, the admission of any evidence on the issue of negligent entrustment and negligent retention/hiring would be prejudicial. (See Diaz, supra, 51 Cal.4th at pg. 1161.) While Plaintiff is correct that the scope of discovery is broader than the admissibility of evidence at trial, Plaintiff has failed to show how the testimony of Paramount’s PMQ regarding hiring, safety, and training is “reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc. § 2017.010.)

Moreover, the Court finds that Plaintiff did not act with diligence in seeking to compel the deposition of Paramount’s PMQ. As shown by the initial meet and confer attempt in early May 2023, Defendants were unwilling to produce the PMQ for discovery and informed Plaintiff’s counsel that the PMQ would not be available until June 15, 2023. (Ulloa Decl. ¶ 5, Exh. 3.) Rather than re-notice the deposition on a day where the PMQ was theoretically available and reserve a hearing for his anticipated motion to compel, Plaintiff instead served a demand notice of the PMQ to appear at trial. (Ulloa Decl. ¶ 6, Exh. 4.) It was only after Plaintiff filed his  ex parte application to continue the trial date on July 19, 2023 did Plaintiff then reserve his hearing for the anticipated motion to compel. (Ulloa Decl. ¶¶ 8-12, Exhs. 6-7.) Because Plaintiff has failed to establish good cause for the requested relief and did not act with diligence, the instant motion is denied.  

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s motion to reopen discovery.

Plaintiff shall give notice of the Court’s ruling, and file proof of service of such.