Judge: Gregory Keosian, Case: 18STCV05553, Date: 2022-10-04 Tentative Ruling

Case Number: 18STCV05553    Hearing Date: October 4, 2022    Dept: 61

Plaintiff Ruthie Zepeda’s Motion to Reopen Discovery is GRANTED to allow Plaintiff to take the depositions of Edgar Engibarian, Sharon Granados, Priscilla Aldaba, Gladys Guzman, Jackie Cardenas, Priscilla Mora, Natasha Hackett, and Tayka Harris, as well as the persons most knowledgeable from Equis and LA Care concerning Plaintiff’s termination and Defendants human resources polices and procedures.

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 here moves to reopen discovery to take the depositions of Edgar Engibarian, Sharon Granados, Priscilla Aldaba, Gladys Guzman, Jackie Cardenas, Priscilla Mora, Natasha Hackett, Tayka Harris, Vanessa McGarry, and Defendants’ persons most knowledgeable concerning Plaintiff’s termination and Defendants’ HR policies and complaints. (Motion at pp. 7–8.) Plaintiff also moves to permit a request for production concerning notes kept by McGarry regarding her interactions with Zepeda, HR, and supervisors concerning her complaints, which she testified she kept in a recent deposition. (Motion at p. 3.)

This court on August 9, 2022, denied a similar motion to reopen discovery filed by Plaintiff. Defendants Equis, LLC and L.A. Care Community Health accordingly argue in opposition that the present motion is an improper and untimely motion for reconsideration. (LA Care Opposition at pp. 5–6; Equis Opposition at p. 4.)

The present motion is not improper. Code of Civil Procedure § 1008 states:

A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.

(Code Civ. Proc. § 1008, subd. (b).)

Plaintiff’s application here is supported by new or different facts. Specifically, since the previous motion was denied — in large part on the grounds that reopening discovery would delay trial — Defendant Equis sought and obtained by ex parte application a continuance of trial, from September 2022 to January 2023. The prejudice factor of the prior motion to reopen discovery has thus been substantially vitiated in Plaintiff’s favor.

Defendants argue once more that Plaintiff was not diligent in seeking the discovery now sought here. (Equis Opposition at pp. 5–6; LA Care Opposition at p. 8.) They are correct that Plaintiff’s prior discovery efforts lacked diligence. But diligence is only one factor in the analysis concerning whether to reopen discovery under Code of Civil Procedure § 2024.050, along with the necessity of the discovery and potential prejudice to other parties.

Nor can diligence in obtaining discovery under section 2024.050 be confused with the diligence in seeking relief due to changed circumstances under Code of Civil Procedure § 1008. (See Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200 [describing diligence requirement].) Plaintiff here opposed Equis’s ex parte request for a continuance and noted how the requested continuance would mitigate the prejudice previously noted in the court’s prior order. Plaintiff promptly filed the present noticed motion two weeks later. Plaintiff has thus been reasonably diligent within the meaning of section 1008.

Good cause supports the discovery sought here, as the court noted in its prior order. The proposed deponents are Plaintiff’s coworkers and supervisors, many of whom are referenced in the SAC. This court indeed denied sanctions on the prior motion on the grounds that Plaintiff’s request to reopen discovery was supported by substantial justification. So the first factor of the section 2024.050 analysis still supports Plaintiff.

Defendants, meanwhile, have not shown any substantial prejudice resulting from reopening discovery. Defendant LA Care argues only that its counsel has one trial scheduled in October and two trials set for November of this year. (Opposition at p. 8.) But with the continuance of trial in this action, this schedule still provides sufficient time in which to take Plaintiff’s proposed depositions. Equis, meanwhile, makes no argument from prejudice in its opposition.

Accordingly, the motion to reopen discovery is GRANTED to allow Plaintiff to take the depositions of Edgar Engibarian, Sharon Granados, Priscilla Aldaba, Gladys Guzman, Jackie Cardenas, Priscilla Mora, Natasha Hackett, and Tayka Harris, as well as the persons most knowledgeable from Equis and LA Care concerning Plaintiff’s termination and Defendants human resources polices and procedures.