Judge: Daniel S. Murphy, Case: 20STCV23682, Date: 2023-04-12 Tentative Ruling

Case Number: 20STCV23682    Hearing Date: April 12, 2023    Dept: 32

BACKGROUND

            On June 23, 2020, Plaintiff Marc A. Taylor initiated this employment discrimination action against Defendant City of West Covina. The operative First Amended Complaint, filed November 19, 2020, alleges a single cause of action for age discrimination based on Plaintiff’s termination from the Police Chief position.

            On March 7, 2023, Defendant filed the instant motion to compel Plaintiff’s responses to Requests for Production, Set Two. Defendant had previously propounded interrogatories seeking information on Plaintiff’s damages. Plaintiff objected to the interrogatories on the grounds that they required expert analysis and Plaintiff had not retained an expert at that stage. Plaintiff did not supplement his interrogatory responses after retaining a damages expert. Defendant then propounded the subject RFPs to ascertain the information. Plaintiff objected to the RFPs on the grounds that the discovery cutoff had passed. This motion followed. Defendant argues that discovery was not cut off but alternatively requests the Court to reopen discovery.

LEGAL STANDARD

Upon receiving responses to requests for inspection, the propounding party may move for an order compelling further responses if the party finds that an objection is without merit or an answer is incomplete or evasive. (Code Civ. Proc., § 2031.310(a).)

MEET AND CONFER

Motions to compel further responses must be accompanied by a meet and confer declaration showing a good faith attempt to resolve the matter informally. (Code Civ. Proc., § 2031.310(b)(2).) The Court finds that Defendant has satisfied the meet and confer requirement. (See Misetich Decl. ¶¶ 9-10.)

DISCUSSION

            “[A]ny 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.” (Code Civ. Proc., § 2024.020(a).) “[A] continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Id., subd. (b).)  

            Trial in this matter was originally set for September 27, 2022. Defendant propounded the subject RFPs on December 16, 2022. Therefore, the RFPs were propounded after the discovery cutoff. Defendant argues that discovery was not cut off because trial was vacated rather than continued or postponed. This is an immaterial distinction. The trial date was vacated and subsequently reset for May 16, 2023. This is the same as a continuance or postponement. Defendant cites no authority for the proposition that the discovery cutoff may be avoided simply because the court did not use the precise words “continue” or “postpone” in its order. Defendant points out that Plaintiff himself served deposition notices after the cutoff. (Misetich Reply Decl., Ex. A.) But that does not change the untimeliness of Defendant’s requests.

            Defendant alternatively requests the Court to reopen discovery. (See Code Civ. Proc., § 2024.050.) However, Defendant should have made an independent motion to reopen discovery before even propounding the RFPs. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.) Instead, Defendant propounded the RFPs without seeking leave to do so, and now moves to compel responses after Plaintiff properly objected based on the cutoff.

            Defendant blames Plaintiff for the various trial continuances. However, that does not change the discovery cutoff or erase the fact that Defendant did not pursue the subject discovery for over a year. Defendant claims that Plaintiff failed to serve supplemental interrogatory responses after his initial objections. However, it was Defendant’s burden to propounded supplemental requests. (See Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1328.) Defendant argues that by the time Plaintiff identified his damages expert on September 6, 2022, the discovery cutoff had already passed. However, it was Defendant’s burden to move for reopening discovery if it wished to conduct discovery after the cutoff.

            Defendant did not propound the RFPs until December 2022, three months after Plaintiff’s expert disclosure. Defendant claims that it was not until after the parties’ failed mediation in November 2022 that it became clear Defendant needed the information on Plaintiffs’ damages to properly evaluate his suit. (Reply 4:8-13, 7:5-9.) It is unclear why the necessity only arose after mediation. Defendant first sought the information in the interrogatories propounded in July 2021, so if the information is critical, Defendant has been aware of its importance since July 2021. Yet, there was no further attempt to obtain the information until December 2022. As Plaintiff points out, had trial commenced as originally scheduled on September 27, 2022, Defendant would have gone to trial without the benefit of the discovery it currently seeks, and would have simply cross-examined Plaintiff’s expert at trial—something Defendant does not appear to have complained about at the time. Now, one month before the new trial date, Defendant seeks court intervention to obtain information that it did not bother pursuing between July 2021 and December 2022.

            The above circumstances suggest that the discovery is not as critical as Defendant claims, that Defendant was not diligent in seeking the information, and that reopening discovery this close to trial would result in further delay. These factors weigh against reopening discovery. (See Code Civ. Proc., § 2024.050(b).) As such, the Court declines to exercise its discretion to reopen discovery.

CONCLUSION

            Defendant’s motion to compel further responses to RFP Set Two is DENIED.