Judge: Armen Tamzarian, Case: 22STCV05815, Date: 2023-09-29 Tentative Ruling

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Case Number: 22STCV05815    Hearing Date: March 7, 2024    Dept: 52

Plaintiff Dana Moon’s Motion for Order to Reopen Discovery and to Extend Discovery and Discovery Motion Cut-off Dates

Plaintiff Dana Moon moves to reopen discovery.

Plaintiff does not show she made an adequate attempt to meet and confer about reopening discovery.  A motion to reopen discovery “shall be accompanied by a meet and confer declaration under Section 2016.040.”  (CCP § 2024.050(a).)  “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”  (CCP § 2016.040.) 

The declaration of Jeffrey E. Dorsett in support of this motion does not show any such effort to resolve the issue presented by the motion: reopening discovery.  His declaration begins by explaining the parties’ disputes over the depositions of defendants Chong Park and Howard Park.  (J. Dorsett Decl., ¶¶ 2-28.)  It ends by stating, “After meeting and conferring, Counsel and I agreed to an IDC and agreed that the motion cut-off date shall be 20 days after the IDC.  Counsel stated that he was going to add his request to compel Plaintiff’s further deposition answers as to Plaintiff’s contentions.  IDC regarding Defendants’ and Plaintiff’s depositions was scheduled for January 22, 2024, but was rescheduled to February 6, 2024 on this court’s own motion then was continued again to March 1, 2024, due to Counsel’s engaging in another trial from February 5, 2024.”  (Id., ¶¶ 29-31.) 

This declaration does not show any effort to informally resolve the issue at hand.  It refers only to “meeting and conferring” to set an IDC for January 22.  It identifies no efforts plaintiff’s counsel made to avoid the need to file this motion to reopen discovery after the IDC was rescheduled and before plaintiff filed the motion on February 8. 

Plaintiff also fails to show good cause to reopen discovery.  Code of Civil Procedure section 2024.050(b) provides:

In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion 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.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

This statute provides the exclusive procedure for reopening discovery.  Plaintiff’s motion never cites the statute.  Even if the moving party shows grounds for compelling discovery, the court cannot grant that relief after the discovery motion deadline without “first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances.”  (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588 (Pelton-Shepherd).)  The court should make that decision after the parties “offer[] evidence and argument” on the relevant factors under Code of Civil Procedure section 2024.050, thus giving the court “an informed basis on which to exercise its discretion.”  (Ibid.) 

Plaintiff’s motion almost exclusively discusses the substance of the underlying discovery disputes.  Not whether the relevant factors support reopening discovery under section 2024.050. 

Plaintiff’s papers do demonstrate that defendants’ counsel obstructed the deposition of Chong Park.  Defendants’ counsel made numerous improper objections.  “Objections to the competency of the deponent, or to the relevancy, materiality, or admissibility at trial of the testimony or of the materials produced are unnecessary.”  (CCP § 2025.460(c).)  Defendants’ counsel objected, for example, that questions “lack[] foundation” (J. Dorsett Decl., Ex. A, Chong Park Depo., 191:9, 199:24) and repeatedly called questions “inappropriate” (id., pp. 192, 194, 199, 200, 201, 202, 203).  He also argued on the record, such as by stating, “[B]y not responding, you are admitting that those are inappropriate questions yet you keep doing it every time.”  (Id., p. 200:17-19.) 

Defendants’ counsel also improperly instructed Chong Park not to answer questions.  Generally, it is only proper to instruct the deponent not to answer when a question “pertains to privileged matters.”  (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1015.)  Defendants’ counsel instructed Chong Park not to answer because questions were purportedly “argumentative or harassing” (Chong Park Depo., 191:18-192:7, 194:8-13) and that a question was “asked and answered” (id., 193:19-24). 

Defendants’ counsel’s conduct, though inappropriate, is not itself grounds for reopening discovery.  It may be grounds for a motion to compel further answers at deposition under Code of Civil Procedure section 2025.480.  Similarly, that Howard Park did not appear for a continued session of his deposition on January 18, 2024, may be grounds for a motion to compel his attendance under section 2025.450.  But the court cannot reopen discovery solely on that basis.  (Pelton-Shepherd, supra, 165 Cal.App.4th at pp. 1587-1588.)  The court must first consider all relevant factors.  Plaintiff fails to show why additional testimony is necessary (§ 2024.050(b)(1)) or that plaintiff diligently sought to complete discovery before the deadline (id., subd. (b)(2)).

Plaintiff makes only a conclusory argument that “if the requested continuance is not granted, Plaintiff would be deprived of the opportunity to fully and fairly present her case.”  (Motion, p. 12.)  This section of plaintiff’s brief cites only Cadle Co. v. World Wide Hospitality Furniture, Inc. (2006) 144 Cal.App.4th 504, which does not discuss discovery at all, let alone reopening discovery.  That opinion held the trial “court abused its discretion in entering judgment against the corporate defendant” when “[a] brief trial continuance would have permitted” the suspended corporation to “restore [its] good standing with the State, and defend the litigation.”  (Id. at p. 512.)  Any prejudice in not permitting plaintiff to conduct additional discovery is far less than the prejudice from refusing to permit a party to defend itself at all. 

After considering all factors relevant to reopening discovery, the court exercises its discretion not to do so.

Plaintiff Dana Moon’s motion to reopen discovery is denied.