Judge: Dennis J. Keough, Case: 2020-01164125, Date: 2023-05-18 Tentative Ruling

Motion for Leave to Re-Open Discovery

Plaintiff, Richard Jones’ (Plaintiff) Motion to Reopen Discovery is GRANTED.

Code of Civil Procedure section 2024.050 provides in part:

“(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The 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.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”

On 10-4-22, the court granted Plaintiff’s Ex Parte to Continue Trial and continued the 11-7-22 trial date to 5-8-23. All discovery and motion cut-off dates were to be based on the new trial date.

On 4-19-23, the court granted Plaintiff’s Ex Parte to Vacate the Trial Date and Set a Trial Setting Conference. The 5-8-23 trial date was vacated and has not been reset to date.

Plaintiff argues that the motion must be granted because Defendant has not served compliant responses to Plaintiff’s written discovery which seeks relevant information about the cleaning solution Plaintiff alleges was sprayed into his eyes on the day of the incident at Defendant’s store. Plaintiff asserts that he has been diligent in seeking discovery but that Defendant has continued to withhold information. Further, the depositions of certain witnesses remain pending, such as Defendant’s employee Lyn O’Shaughnessy. Finally, Plaintiff asserts that denying the Motion would prejudice Plaintiff because it would make it harder for Plaintiff to obtain new counsel after his current counsel withdraws.

In opposition, Defendant contends that Plaintiff has been dilatory in seeking discovery because Plaintiff did not serve any discovery until almost two years after the case was filed. Further, when Plaintiff began serving discovery, the amount Plaintiff served was overly voluminous and burdensome such that Defendant was justified in seeking extensions of time to respond and in ultimately filing a protective order. Defendant also argues that reopening discovery would be prejudicial to Defendant, as it has already completed its own discovery and would be forced to incur additional costs to respond to Plaintiff’s discovery and engage in associated motion practice.

The court finds that reopening discovery in this action is warranted.

First, there is currently no trial date scheduled for this action. As such, there is no likelihood that permitting discovery will prevent the case from going to trial on the date set as no such date has been set. Additionally, because there is no trial date set for this action, the likelihood that either party will be prejudiced by allowing Plaintiff to complete his discovery is minimal.

Second, the court notes that Plaintiff’s counsel has a Motion to be Relieved as Counsel pending. The court is persuaded by Plaintiff’s argument that he would be prejudiced should the motion be denied, as it would be less likely that new counsel would be willing to take Plaintiff’s case should discovery remain closed.

Third, the court finds that Plaintiff has demonstrated that certain discovery necessary to his claims remains pending. For example, Plaintiff has identified that he requires the deposition of Defendant’s employee Lyn O’Shaughnessy, who is a potential witness. Defendant does not dispute that Ms. O’Shaughnessy’s deposition has not been taken.

Given the foregoing, Plaintiff’s Motion is GRANTED.

Discovery in this matter is re-opened. Plaintiff is to give notice.