Judge: Gregory Keosian, Case: 18STCV05553, Date: 2022-08-09 Tentative Ruling

Case Number: 18STCV05553    Hearing Date: August 9, 2022    Dept: 61

Plaintiff Ruthie Zepeda’s Motion to Reopen Discovery is DENIED.

I.                   MOTION TO REOPEN DISCOVERY

The discovery cut-off date is 30 days before the original trial date, and the motion cut-off date is 15-days before the original trial date. (see Code Civ. Proc., § 2024.020, subd. (a).) “Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc., § 2024.020, subd. (b).)

A party may move to take discovery or have a discovery motion heard after the cut-off date, as follows:

(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.

(Code Civ. Proc., § 2024.050, subds. (a), (b).)

Plaintiff Ruthie Zepeda moves to reopen discovery in this matter to take the depositions of Edgar Engibarian, Sharon Granados, Priscilla Aldaba, Gladys Guzman, Jackie Cardenas, Priscilla Mora, Natasha Hackett, Tayka Harris, and Defendants’ persons most knowledgeable concerning Plaintiff’s termination and Defendants’ HR policies and complaints. (Motion at p. 1.) Plaintiff argues that these depositions are necessary to advance her case, which is founded on wrongful termination and discrimination. (Motion at pp. 5–7.) Plaintiff argues that Defendants’ failure to provide substantive written discovery necessitates the depositions here. (Motion at p. 7.) Meanwhile, Plaintiff argues that these depositions can all be completed in the 28 days currently allotted between the date of hearing on this motion and the date of trial, set to begin on September 6, 2022. (Motion at p. 7.)

Trial in this matter was originally set for December 15, 2020, but on July 22, 2020, that trial date was vacated, and trial was continued to September 6, 2022, without continuing the associated discovery deadlines.

Plaintiff initially served notices of deposition for Defendants’ persons most knowledgeable and for Granados, McGarry, and Guzman in November 2019, but Plaintiff cancelled these depositions in January and February 2020. (Nelson Decl. Exh. B.) Plaintiff obtained new (and current) counsel in October 2020, as indicated in a substitution of counsel filed on October 22, 2020.

There is good cause for at least some of the discovery sought here. Among the witnesses, Engibarian, Granados, Aldaba, Guzman, and Cardenas are mentioned by name in the FAC as prejudiced co-workers, unsympathetic supervisors, or fellow victims of discrimination. (FAC ¶¶ 39–47.) Their depositions may thus help the parties to assess the truth of Plaintiff’s allegations. Moreover, the deposition of Defendants’ persons most knowledgeable concerning their discrimination policies and Plaintiff’s termination would similarly help the parties to prepare for trial, as such subjects relate to the subject matter of this action.

What is unexplained, however, is why these depositions could not have been taken until the month before trial, more than a year after the close of discovery in this case. For those witnesses who previously were noticed for deposition — no notices were evidently served for Engibarian, Aldaba, Cardenas, Mora, Hackett, or Harris (Henderson Decl. ¶¶ 2–3) — the notices were served in November 2019, canceled in January and February 2020, and then never revived. Plaintiff contends that this was to allow a hearing to take place on Plaintiff’s motion to compel further. (Reply at pp. 3–4.) That motion was heard on January 7, 2021. But there was no effort to reopen discovery until Plaintiff filed this motion on July 8, 2022. Plaintiff has not been diligent in bringing this motion or in seeking the discovery at issue.

It is likely that reopening discovery at this late juncture would prejudice Defendants, either by requiring of an expedited schedule of depositions in the days leading up to trial — thus impeding their preparation for same — or else further delaying trial itself. Plaintiff argues that prejudice can easily be avoided by ordering the depositions to occur within two weeks of the hearing date on this motion. (Motion at p. 7.) But this would not vitiate the prejudice that would befall Defendants’ trial preparation efforts in that time. And several of the witnesses sought likely won’t be able to be secured in the time remaining before trial, as they are no longer employed by Defendants. (Frater Decl. ¶ 17.)

The most likely outcome of granting Plaintiff’s motion is thus further delay of trial. This is to occur after trial has already been substantially delayed from its initial December 2020 date. Although Plaintiff was not at fault for that initial delay, Plaintiff offers no reason why the reopening now requested could not have been sought at a more propitious moment in the 18 months that have passed since the ruling on her motion to compel further in January 2021.

Because the factors set out in Code of Civil Procedure § 2024.050 weigh substantially against Plaintiff, the motion is DENIED.

Defendant LA Care moves for sanctions ($3,975.00) under Code of Civil Procedure § 2024.050, subd. (c), which requires them in the event a motion to reopen discovery is unsuccessfully made or opposed, absent substantial justification otherwise. (Opposition at p. 11.) Plaintiff’s motion here was made with substantial justification, and sanctions are not warranted.