Judge: Elaine Lu, Case: 22STCV02980, Date: 2023-04-04 Tentative Ruling

Case Number: 22STCV02980    Hearing Date: April 4, 2023    Dept: 26

Superior Court of California

County of Los Angeles

Department 26

Background   

             On January 25, 2022, Plaintiff Alejandro Arroyo Salgado (“Plaintiff”) filed the instant action against Defendant General Motors LLC (“Defendant”) arising out of Plaintiff’s purchase of a 2020 Chevrolet Trax.   The complaint asserts two causes of action for (1) Violation of the Song-Beverly Act – Breach of Express Warranty and (2) Violation of Song-Beverly Act – Breach of Implied Warranty. 

            On November 17, 2022, Plaintiff filed the instant motion to compel Defendant’s further response to Request for Production of Documents, Set One (“RPDs”).  On March 21, 2023, Defendant filed an opposition.  On March 24, 2023, the parties filed a joint statement.  On March 27, 2023, Plaintiff filed a reply.

Legal Standard

Requests for Production of Documents

Code of Civil Procedure section 2031.310 provides, in pertinent part, as follows:

(a) On receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply:

(1) A statement of compliance with the demand is incomplete.

(2) A representation of inability to comply is inadequate, incomplete, or evasive.

(3) An objection in the response is without merit or too general.

(b) A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

Code Complaint Response

A code-compliant response to a request for production consists of any of the following: (1) a statement that the party will comply, (2) a representation that the party lacks the ability to comply, or (3) an objection.  (CCP §§ 2031.210.)  A statement that the party will comply must state that the Request for Production (“RPD”) “will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.”  (CCP § 2031.220.)  “If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”  (CCP § 2031.240(a).)  If an objection is made the responding party must “[i]dentify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.”  (CCP § 2031.240(b)(1).)

Discussion

            The instant motion must be denied as the discovery cutoff has passed.

            Pursuant to Code of Civil Procedure section 2024.020, “any 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.”  (CCP § 2024.020(a).)  “Thus, if a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. By negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard. But the fact that a party does not have a right to have a discovery motion heard after the discovery motion cutoff date does not mean the court has no power to hear it, or that the court errs in hearing it. Indeed, subdivision (a) of section 2024.050 specifically allows a discovery motion to be heard after the discovery motion cutoff date by providing that ‘the court may grant leave ... 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.’ But that statute also specifies that such leave may be granted ‘[o]n motion of any party.’ (§ 2024.050, subd. (a).) Moreover, such a motion must be accompanied by a meet and confer declaration, and in exercising its discretion to grant or deny the motion the court must consider various factors, including (but not limited to) ‘[t]he necessity and the reasons for the discovery’ and ‘[t]he diligence or lack of diligence of the party seeking ... the hearing of a discovery motion, and the reasons that ... the discovery motion was not heard earlier.’ (§ 2024.050, subds. (a) & (b)(1), (2).)”  (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586–1587.)

            Here, trial is set for April 17, 2023.  (Case Management Order 5/25/22.)  Accordingly, the last day to notice a discovery motion to be heard was April 2, 2023.  The instant motion was noticed for April 4, 2023 – two days after the discovery deadline.  Plaintiff failed to file an ex parte application to advance the instant motion to be heard before the discovery deadline.  Nor did Plaintiff file a motion for leave to reopen discovery or have this motion heard after the discovery deadline.  Thus, hearing the instant motion without considering whether discovery should be reopened would be a reversable abuse of discretion.  (Pelton-Shepherd Industries, Inc., supra, 165 Cal.App.4th at p.1588 [“By simply hearing the motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances, the trial court ‘transgresse[d] the confines of the applicable principles of law’ [Citation] and thereby abused its discretion.”].) 

            Here, it would be difficult for Plaintiff to argue a reason to reopen discovery as Plaintiff has failed to act with diligence with regard to advancing the hearing for the instant motion to a date before discovery cut-off.  As noted in the moving papers, the at issue discovery responses were served on July 1, 2022.  (Bissman Decl. ¶ 6, Exh. B.)  While the parties met and conferred through various letters through September of 2022, the parties agreed to extend the deadline to file the motion to compel further to November 17, 2022.  (Bissman Decl. ¶¶ 10-13, Exhs. C-F.)  Plaintiffs had over four months to move ex parte to advance the hearing date on the instant motion to be heard before the discovery motion deadline but took no action, leaving the instant motion hearing mere days before trial and after discovery motion cut-off.  With this record, the Court could not conclude that Plaintiff has acted diligently in seeking a hearing for the instant motion before the discovery motion cut off.

            Further, no party has filed any written agreement specifying an extended date to hear the instant discovery motion past the discovery cutoff.  (CCP § 2024.060.)  As the discovery cutoff has passed, the instant motion must be DENIED.

CONCLUSIONS AND ORDER

Based on the forgoing, Plaintiff Alejandro Arroyo Salgado’s motion to compel Defendant General Motors LLC’s further response to Request for Production of Documents, Set One is DENIED.

Moving Party is ordered to provide notice of this order and file proof of service of such.

DATED: April 4, 2023                                                           ___________________________

                                                                                          Elaine Lu

                                                                                          Judge of the Superior Court