Judge Audra Mori, Case BC692591 2023-01-23 Tentative Ruling

On January 31, 2018, Plaintiff Owoimaha Umoh (“Plaintiff”) filed this action against Defendant Ofir Alon Faktor (“Defendant”) for damages arising out of an automobile accident.

At this time, Plaintiff moves to compel Defendant’s deposition. Plaintiff asserts that he noticed Defendant’s deposition for October 5, October 20, and August 10, 2022, but Defendant failed to appear for his deposition on each date.

In opposition, Defendant argues the motion must be denied because fact discovery closed in this matter on August 1, 2022, which made the motion cutoff date for Plaintiff’s instant motion to be heard August 16, 2022. As of January 18, 2023, no reply has been filed.

(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.

(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.

In this case, trial was previously set for August 31, 2022, which means that the discovery cutoff date was August 1, 2022, and the last day to have discovery motions heard was August 16, 2022. On August 17, 2022, after the discovery and discovery motion cutoffs had passed, the August 31, 2022 trial date was continued to September 30, 2022. However, only open deadlines were to move with the trial date. (Min. Order, Aug. 17, 2022.) Thereafter, the trial date was continued multiple times, but the continuances did not provide that any closed deadlines were to be reopened. (Min. Orders, Sept. 16, 2022 and Oct. 17, 2022.)[1] Most recently, on November 14, 2022, the trial date was continued to March 8, 2023, and by agreement of the parties, only expert discovery was continued based on the new trial date. (Min. Order, Nov. 14, 2022.) Further, “Fact discovery regarding the spinal cord simulator and deposition of Dr. Gutan” was to be provided within 60 days. (Ibid.) No other discovery deadlines were extended with the continuance.

Therefore, discovery is closed in this action and the motion cutoff date has now passed. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586 [A party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard.].) To date, Plaintiff has not had discovery reopened. Moreover, based on the prior August 31, 2022 trial date, Plaintiff’s instant motion was not timely filed. Based on the August 16, 2022 motion cutoff date, the last day to provide 16-court days of notice in order for a discovery motion to be heard by August 16, 2022 was July 25, 2022. However, Plaintiff did not file the instant motion until July 29, 2022.

Based on the foregoing, Plaintiff’s motion to compel Defendant’s deposition is denied.[2]

Defendant requests monetary sanctions of $1,560.00 pursuant to CCP § 2023.010 for opposing the motion. However, CCP § 2023.010 does not independently authorize the Court to impose monetary sanctions for misuse of discovery. (City of Los Angeles v. PricewaterhouseCoopers, LLC (2022) 2022 WL 12010415 at *21 [“award of monetary sanctions … based solely on [CCP §§] 2023.010 and 2023.030 without regard to any other provision of the Discovery Act, constituted an abuse of discretion because it was outside the bounds of the court's statutory authority.”].) Defendant does not otherwise identify any other provisions Defendant is seeking sanctions under.[3] Therefore, Defendant’s request for monetary sanctions is denied.

Hon. Audra Mori

Judge of the Superior Court

[1] The October 17, 2022 order continuing the then October 31, 2022 trial date expressly provided, “All deadlines that are closed remain closed.”

[2] Additionally, the motion is further defective in that Plaintiff did not submit a meet and confer declaration with the motion as required by CCP § 2025.450(a)(2). (“The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”)

[3] The Court notes that sanctions were awarded to Defendant for opposing Plaintiff’s motions to compel responses. However, the Discovery Act expressly provides for sanctions against a party that unsuccessfully makes a motion to compel. (See e.g., CCP § 2030.290(c).) Defendant has not identified any section applicable to this matter through which Defendant seeks sanctions for opposing this motion.