Judge: Curtis A. Kin, Case: 21STCV09166, Date: 2023-04-11 Tentative Ruling

Case Number: 21STCV09166    Hearing Date: April 11, 2023    Dept: 72

MOTION TO REOPEN DISCOVERY

Date:               4/11/23 (8:30 AM)

Case:               Jose Fernandez Mendez v. Tolly Landscape, Incorporated (21STCV09166)

TENTATIVE RULING :

Defendant Tolly Landscape, Incorporated’s Motion to Reopen Discovery for the Limited Purpose of Deposing Plaintiff is GRANTED.

Defendant Tolly Landscape, Incorporated seeks to reopen discovery for the limited purpose of taking plaintiff Jose Fernandez Mendez’s deposition.

As background, trial was initially set for November 7, 2022. (8/13/21 Minute Order.) Under CCP § 2024.020(a), discovery closed 30 days before the day initially set for trial. Accordingly, the discovery cut-off date was October 10, 2022. (CCP §12a [deadlines falling on Saturday moved to next court day].)

As a preliminary matter, plaintiff argues that defendant did not meet and confer before filing this motion, as required by CCP § 2024.050(a). The Court disagrees. Defendant avers that it met and conferred about the completion of discovery, including the taking of plaintiff’s deposition, once its counsel substituted into the case. (Caryl Decl. ¶ 14.) However, plaintiff did not agree to the taking of his deposition. Based on plaintiff’s insistence that defendant was not diligent in seeking plaintiff’s deposition, a further meet and confer would not have resolved this matter. The Court finds that defendant adequately met and conferred before filing this motion.

Defendant seeks to reopen discovery on the ground that the transfer of the instant action from former to current counsel prevented plaintiff’s deposition that was set to take place on September 23, 2022. (Caryl Decl. ¶¶ 9, 11 & Exs. C, E.) Plaintiff contends that defendant has not been diligent in seeking his deposition.

Defendant filed an Answer on June 25, 2021. Defendant first sought available dates for plaintiff’s deposition on March 30, 2022. (Caryl Decl. ¶ 7 & Ex. A.) Defendant then followed up regarding its request for plaintiff’s deposition on August 21, 2022. (Caryl Decl. ¶ 8 & Ex. B.) Defendant then served a deposition notice on plaintiff on September 9, 2022. (Caryl Decl. ¶ 9 & Ex. C.) On September 21, 2023, defendant took plaintiff’s deposition off calendar because current counsel was substituting into the case. (Caryl Decl. ¶ 11 & Ex. E.)

Arguably, defendant was not diligent in seeking the deposition of plaintiff or filing the instant motion. (See CCP § 2024.050(b)(2) [factor for court to consider in deciding whether to reopen discovery is “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”].) On August 13, 2021, defendant first had reason to know of the discovery cutoff when defendant attended the Case Management Conference. (8/13/21 Minute Order.) During the Case Management Conference, trial was initially set for November 7, 2022. (8/13/21 Minute Order.) Despite defendants’ knowledge of the trial date as of August 13, 2021, defendant did not first raise the issue of taking plaintiff’s deposition until March 30, 2022. (Caryl Decl. ¶ 7 & Ex. A.) Defendant does not explain why it waited more than seven months before attempting to take the deposition of plaintiff. Defendant did not follow up regarding plaintiff’s deposition until August 21, 2022 and did not serve a deposition notice until September 9, 2022. (Caryl Decl. ¶ 9 & Ex. C.) Even if the handling attorney was on maternity leave (see Mtn. at 4, fn. 1), another attorney from former counsel’s firm could have continued the efforts to depose plaintiff. Instead, defendant took the deposition of plaintiff off calendar and never filed a motion to compel attendance at deposition before the discovery cutoff.

Further, even though a substitution of attorney form was filed on October 19, 2022, defendant did not file the instant motion until March 13, 2023. Current counsel does not explain the reason for the delay in filing this motion.

Nevertheless, the other factors set forth in CCP § 2024.050(b) weigh in favor of allowing defendant to take the deposition of plaintiff, even after the discovery cutoff. With respect to the necessity and the reasons for discovery, as referenced in CCP § 2024.050(b)(1), the purposes of discovery include “giv[ing] greater assistance to the parties in ascertaining the truth and in checking and preventing perjury” and “educat[ing] the parties in advance of trial as to the real value of their claims and defenses, thereby encouraging settlements.” (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 376.) Taking the deposition of plaintiff would allow defendant to determine the validity of plaintiff’s claims and formulate a defense and/or encourage the parties to settle the matter.

Further, with respect to prejudice to the other party, as referenced in CCP § 2024.050(b)(3), and to the length of time that has elapsed between the date previously set for trial and the date presently set, as referenced in CCP § 2024.050(b)(4), trial was continued from November 7, 2022 to July 24, 2023, pursuant to the parties’ stipulation. Because trial is not set to take place for approximately three months, the taking of plaintiff’s deposition would not necessarily hinder plaintiff’s preparation for trial or require another trial continuance. No undue prejudice will result from the taking of plaintiff’s deposition.

Based on defendant’s need for the deposition of plaintiff and the lack of prejudice to plaintiff, the motion is GRANTED. Discovery is reopened for the limited purpose of taking the deposition of plaintiff.