Judge: Armen Tamzarian, Case: 21SMCV01617, Date: 2023-09-05 Tentative Ruling

Please notify Department 52 via email at smcdept52@lacourt.org and indicate that the parties are submitting on the tentative ruling. Please provide the attorney's name and represented party. Please notify the opposing side via email if submitting on the Court's tentative ruling.

Case Number: 21SMCV01617    Hearing Date: February 14, 2024    Dept: 52

(1) Defendants Tower Goal, Ltd.’s, Future Land, Ltd.’s, and International Asia Holdings, LLC’s Motion to Compel Deposition of Plaintiffs’ Expert Jeff Voorheis; and (2) Order to Show Cause Re: Transfer to Limited Jurisdiction

(1) Defendants’ Motion to Compel Deposition of Jeff Voorheis          

Defendants Tower Goal, Ltd., Future Land, Ltd., and International Asia Holdings, LLC move to compel the deposition of Jeff Voorheis, an expert witness for plaintiffs Donoco Investments, LLC and Donald Okada.

The court will not consider plaintiffs’ opposition.  Marcus, Watanabe & Enowitz filed the opposition on plaintiffs’ behalf.  That firm is not plaintiffs’ counsel of record.  The firm has filed two notices of limited scope representation stating representation was limited to (1) opposing summary judgment and (2) responding to the order to show cause re: transfer to limited jurisdiction.  Both notices of limited scope representation further state, “Specifically excluded from the retainer is any work on any motion other than” summary judgment or the order to show cause.  “This exclusion from the scope of legal services covered by this Contract extends to discovery, including expert witness disclosure and discovery, and any work relating to trial.”  This motion concerns expert witness discovery.  Marcus, Watanabe & Enowitz do not represent plaintiffs for that purpose. 

Defendants’ motion is untimely.  “Any party shall be entitled as a matter of right to complete discovery proceedings pertaining to” expert witnesses “on or before the 15th day, and to have motions concerning that discovery heard on or before the 10th day, before the date initially set for the trial of the action.”  (CCP § 2024.030.)  At latest, the deadline to hear this motion concerning expert discovery was 10 days before the prior trial date of November 29, 2023.  Granting this untimely motion would constitute an abuse of discretion.  (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1587-1588.) 

Defendants argue, “While the Court did not reopen fact discovery when it continued the trial date, it did not indicate that expert discovery was closed.”  Indicating that is not necessary.  Continuing discovery deadlines when continuing the trial is an exception to the default rule.  (CCP § 2024.020(b).)  The statute governing the expert discovery cutoff refers to “the date initially set for the trial.”  (CCP § 2024.030.)

Defendants also contend, “[S]ince the parties did not conduct expert discovery while settlement discussions were ongoing through November 2023, it would be unreasonable to assume that expert discovery is also closed and that Defendants should be deprived of their ability to depose Plaintiffs’ experts.” 

That the parties did not conduct expert discovery cannot result in extending the discovery deadline.  Any “agreement to extend the time for the completion of discovery proceedings or for the hearing of motions concerning discovery, or to reopen discovery after a new date for trial of the action has been set … shall be confirmed in a writing that specifies the extended date.”  (CCP § 2024.060.)  Defendants present no writing confirming the parties agreed to extend the deadline to complete expert discovery to the date they noticed for Voorheis’s deposition, December 29, 2023.  They present no writing confirming the parties agreed to extend the deadline to hear expert discovery motions to today or later. 

            Defendants Tower Goal, Ltd., Future Land, Ltd., and International Asia Holdings, LLC’s motion to compel the deposition of Jeff Voorheis is denied. 

(2) Order to Show Cause Re: Transfer to Limited Jurisdiction

            On January 24, 2024, the court ordered plaintiffs to show cause why this action should not be transferred to limited jurisdiction.  Plaintiffs timely responded to the order to show cause.

Plaintiffs show good cause to not reclassify this action.  An action may be classified “as a limited civil case” only if it meets three conditions, including that “[t]he relief sought is a type that may be granted in a limited civil case.”  (CCP § 85(b).)  Code of Civil Procedure section 580(b) provides, “[T]he following types of relief may not be granted in a limited civil case: [¶] (2) A permanent injunction, except as otherwise authorized by statute. [¶] (4) Declaratory relief, except as authorized by Section 86.”

Plaintiffs’ complaint seeks declaratory relief outside the limited exceptions under Code of Civil Procedure section 86(a)(7).  The complaint further seeks a permanent injunction that does not fall within an exception to section 580(b)(2).

            The court does not reclassify this action as a limited civil case.