Judge: Daniel S. Murphy, Case: 20STCV40043, Date: 2022-09-21 Tentative Ruling

Case Number: 20STCV40043    Hearing Date: September 21, 2022    Dept: 32

BACKGROUND

            On October 19, 2020, Plaintiff Pixior, LLC filed this action against Defendant Cojecto, alleging: (1) breach of contract; (2) breach of the covenant of good faith and fair dealing; (3) open book account; (4) account stated; (5) unjust enrichment; and (6) declaratory relief. The lawsuit stems from the following facts.

            In July 2020, Plaintiff and Defendant entered into a written agreement whereby Plaintiff was to provide Defendant with approximately 50,000 square feet of warehouse space for storage and related facility access. Plaintiff claims that Defendant breached this agreement by failing to pay for the space provided and vacating the premises without the requisite notice. Plaintiff claims that Defendant owes $150,000. Defendant disputes that it was required to pay the full $150,000 on the grounds that Plaintiff failed to provide the 50,000 square feet as agreed.    

            The instant motion stems from Defendant’s recent supplemental responses to discovery which contained documents not previously produced. Plaintiff accordingly moves to exclude the evidence based on unfair surprise.

LEGAL STANDARD

            A trial court may properly exclude evidence where a party fails to produce evidence in response to discovery requests or conceals the existence of relevant materials, thus subjecting the other party to unfair surprise. (See Deeter v. Angus (1986) 179 Cal.App.3d 241, 254-55.) A court also has discretion to reopen discovery after the cutoff. (Code Civ. Proc., § 2024.050.)

DISCUSSION

            Plaintiff propounded written discovery requests back in December 2020. (Farivar Decl. ¶ 8.) Defendant provided its initial responses in February 2021. (Id., ¶ 9.) Defendant then produced its first set of supplemental responses in June 2021. (Id., ¶ 10.) Certain documents referenced in Defendant’s responses were not produced, and Plaintiff followed up throughout July 2021. (Id., ¶ 11.) In June 2022, Plaintiff served demands to supplement discovery, to which Defendant responded on July 19, 2022. (Id., ¶¶ 12-13.) The supplemental responses referred to additional documents that had not been produced. (Id., ¶ 13.) On July 21, 2022, Defendant provided Plaintiff with an email link to the additional documents, but Defendant did not actually authorize Plaintiff’s counsel to view the link until July 22. (Id., ¶ 14.)

            Defendant acknowledges that the discovery cutoff was July 18, 2022 and that it did not provide documents until July 21, 2022. (Opp. 6:1-2, 7:12-15.) Therefore, Defendant produced belated discovery which leaves Plaintiff with no opportunity to conduct further discovery regarding this new information. Defendant contends the information is not new, but merely consists of previously-produced documents with new file names. (Opp. 6:19-23.) However, Defendant avers that the new production is only “largely duplicative,” acknowledging that there are issues with at least some documents, including 47 pictures and 10 videos. (Opp. 6:21-27.) Thus, it appears that the July 21 production contains new documents.

CONCLUSION

Producing such new evidence after the discovery cutoff constitutes prejudice against Plaintiff. Accordingly, the Court will either exclude the evidence or reopen discovery to allow Plaintiff to conduct discovery into the newly produced documents.