Judge: Christopher K. Lui, Case: 19STCV40912, Date: 2024-11-19 Tentative Ruling

Case Number: 19STCV40912    Hearing Date: November 19, 2024    Dept: 76

Plaintiff brings a motion to compel Defendant's attendance at deposition, arguing that Plaintiff served a deposition notice on September 30, 2024 setting Defendant's deposition on October 14, 2024, and Defendant did not appear.

As noted in the Court's October 24, 2024 order denying Plaintiff's ex parte application shortening time for hearing the instant motion, Plaintiff did not make an adequate showing of why, in the exercise of due diligence, the discovery motion could not have been filed and set for hearing prior to the discovery cutoff.  Once the time for discovery has closed, a party has no right to have discovery motions heard, though the Court retains its discretion to hear late-filed motions.  (Pelton-Shepherd Industries, Inc. v. Delta Packaging Prods. (2008) 165 Cal.App.4th 1568, 1587.)  However, as noted in Pelton-Shepherd, there is a condition precedent to the Court exercising its discretion to grant a late-filed motion to compel discovery:  the Court must first make a determination that discovery should be reopened, based on a review of the section 2024.050(b) factors.  (Id. at 1588.)  In Pelton-Shepherd, the Court of Appeal found that the trial court abused its discretion by granting a post-cutoff motion to compel, without first requiring that a motion for leave to reopen discovery be heard and granted.  

The Court has continued the trial date in this case, but did not order the reopening of discovery.  Thus, under Pelton-Shepherd, the Court must consider whether discovery should be reopened pursuant to section 2024.050(b) before entertaining any discovery motions.  The motion is therefore DENIED WITHOUT PREJUDICE.

The Court recommends that the parties meet and confer regarding any outstanding discovery issues and consider whether they can reach agreement on limited discovery without the need for motion practice.