Judge: Christopher K. Lui, Case: 22STCV41010, Date: 2025-01-08 Tentative Ruling

Case Number: 22STCV41010    Hearing Date: January 8, 2025    Dept: 76

The Court has reviewed the ex parte application filed by Plaintiff requesting that the Court either (1) shorten the time to hear Plaintiff's motion to compel the deposition of Defendant's person most knowledgeable, or (2) continue the trial and related dates and deadlines.  The Court finds the matter suitable for decision in chambers without argument. 

The trial date in this case is February 4, 2025.  Unless the time for discovery is extended by stipulation of the parties or an order of the court, general discovery ends 30 days before “the date initially set for the trial of the action.”  Code of Civ. Proc. § 2024.020.  The instant ex parte application was set for hearing on January 8, 2025, which is less than 30 days before trial, and thus beyond the discovery cutoff.  The motion to compel that Plaintiff seeks to have heard on shortened time was filed on January 6, 2025, which means that the first day the motion could be heard on statutory 16-day notice (Code Civ. Proc. § 1005) is January 29, 2025, which is beyond the 15-day discovery motion cutoff set by Code of Civil Procedure section 2024.020(a).

The ex parte application and underlying motion were filed too late for timely hearing within the discovery cutoffs.  Unless the Court orders the reopening of discovery pursuant to section 2024.050, Plaintiff/Defendant has no right to pursue further discovery, and the Court cannot entertain any motions to compel.  (See Pelton-Shepherd Indus. v. Delta Packaging Prods. (2008) 165 Cal.App.4th 1568, 1586-87.)  As noted in Pelton-Shepherd, the Court may still rule on tardy motions, but must decide whether it is appropriate to reopen discovery using the analytical framework of section 2024.050. The instant ex parte application does not address the factors required under section 2024.050, and was not accompanied by a meet and confer declaration required by CCP § 2024.050(a) indicating that the parties specifically met and conferred about the potential reopening of discovery.  Even if good cause were apparent, Section 2024.050(a) expressly requires that requests to reopen or extend discovery be made by a “motion,” and thus, ex parte relief is not available.  (See St. Paul Marine & Fire Ins. Co. v. Superior Court, 156 Cal. App. 3d 82, 86 (1984).) 

Under these circumstances, a continuance of trial to allow a hearing on the motion would be an idle act, since discovery remains closed. 

It is incumbent upon counsel to plan their discovery in a manner that anticipates the necessary lead time for any motions to be heard.  Failure to do so is not an exigent circumstance that justifies ex parte relief pursuant to Rule of Court 3.1202.  Moreover, the papers presented by moving party do not show why, in the exercise of due diligence, the deposition at issue could not have been scheduled earlier in the case, to allow potential disputes regarding scheduling to be litigated before the discovery cutoff.  

The application is DENIED.