Judge Gregory Keosian, Case Number: 19STCV10464, Date: 2023-07-10 Tentative Ruling

Judge: Gregory Keosian, Case: 19STCV10464, Date: 2023-07-10 Tentative Ruling

Case Number: 19STCV10464 Hearing Date: July 10, 2023 Dept: 61

Plaintiffs Dawn Downs and Jeff Grange’s Motion to Reopen Discovery is GRANTED. Plaintiffs are permitted to depose Defendants, and Defendants are permitted to depose Plaintiffs.

Plaintiffs to provide notice.

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).)

Plaintiffs Dawn Downs and Jeff T. Grange (Plaintiffs) move to reopen discovery. The present motion is in tension with a prior order of this court, dated March 6, 2023, in which Plaintiffs’ motion to compel the depositions of Defendants Jose Garcia, Fernando Covarrubia, and Oliver Arellano (Defendants), based on the premise that the discovery deadline had passed. The court’s reasoning was as follows: The initial trial date in this matter was February 9, 2021. The court vacated that trial date on February 1, 2021, and on March 18, 2021, trial was re-set for January 10, 2023. Trial is now, per order of February 1, 2023, scheduled for August 29, 2023. None of these orders postponed the dates related to discovery, and per Code of Civil Procedure § 2024.020, subd. (b), continuing or postponement of trial does operate to reopen discovery proceedings. (Code Civ. Proc. § 2024.020, subd. (b).)

Plaintiffs now move to reopen discovery on two bases. The first is that the reasoning of the court’s prior order denying their motion to compel deposition was flawed, in that it did not account for Code of Civil Procedure § 599, a COVID emergency statute not discussed in the prior moving papers, which states as follows:

Notwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial or arbitration date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines are extended for the same length of time as the continuance or postponement of the trial date.

(Code Civ. Proc., § 599, subd. (a).) The statute is effective for the duration of the COVID-19 emergency, proclaimed on March 4, 2020, and 180 days after the end of the emergency, which occurred by proclamation of Governor Gavin Newsom on February 28, 2023. (RJN Exh. B.) Thus the statute remains in effect.

Plaintiffs’ second basis for reopening discovery is directly addressed to the criteria of Code Civ. Proc. § 2024.050. They contend that they need to take the depositions of Defendants, as they are “the reposititories of all the information related to this case.” (Motion at p. 8.) Plaintiffs contend that they have exercised diligence in seeking the discovery, as their initial counsel was substituted after facing “issues with the State Bar,” and the depositions were noticed only after the failure of mediation efforts in late 2022. (Motion at pp. 8–9.) Finally, Plaintiffs argue that there is more than a month before trial is set to begin on August 29, 2023, and that the taking of Defendants’ depositions will not prejudice Defendants or delay trial. (Motion at p. 9.)

Defendants in opposition contend that this is an impermissible and untimely motion for reconsideration of this court’s March 6, 2023 order denying their motions to compel deposition. (Opposition at pp. 4–5.) Defendants further argue that section 599 expressly provides for its application unless otherwise ordered by a court, and further that in this court’s orders continuing trial on February 1 and 18, 2021, were based on the express representations of Defendants’ counsel that discovery had closed. (Opposition at pp. 7–8.) Defendants contend that Plaintiffs waived their right to invoke the application of section 599 by failing to contest Defendants’ repeated contentions that discovery had closed. (Opposition at p. 8.) Finally, Defendants argue that they will be prejudiced by the reopening of discovery, as they ceased all discovery efforts following the onset of the pandemic and Plaintiffs’ own failure to propound any discovery. (Opposition at pp. 8–9.)

Although this motion bears similarities to a motion for reconsideration, it is not in fact a motion such relief subject to Code of Civil Procedure § 1008. This is because Plaintiffs in this motion seek different relief from that which they sought in their motion to compel deposition; the prior motion, brought to compel Defendants’ depositions, was denied on the grounds that the discovery deadline had passed; the present motion is brought so that discovery might be reopened, as expressly allowed under Code of Civil Procedure § 2024.050. “The nature of a motion is determined by the nature of the relief sought, not by the label attached to it.” (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 43.)

Plaintiffs are entitled to the relief sought here. Code of Civil Procedure § 599 expressly states that “continuance or postponement of a trial or arbitration date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery.” (Code Civ. Proc. § 599, subd. (a).) Although section 599 allows courts to “order[] otherwise,” no order of this court has expressly directed the closure of discovery; the closest any order has come was that of March 6, 2023, which, although it did not itself order discovery closed, articultated the assumption that discovery had been closed since February 2021 — without the benefit of the consideration of Code of Civil Procedure § 599. Both Plaintiffs and Defendants are therefore entitled to conduct depositions according to deadlines set by reference of the current date of trial.

Defendants argue that they will be prejudiced by a reopening of discovery, as they have foregone discovery efforts of their own since March 2020, and Plaintiffs have failed to propound discovery of their own until seeking depositions following a failed mediation in December 2022. (Shaneyfelt Decl. ¶ 24.) However, this prejudice may be mitigated by granting reciprocal relief to both Plaintiffs and Defendants, so that Defendants are as entitled to depose Plaintiffs just as Plaintiffs are entitled to depose them under this order. Moreover, although Defendants argue that Plaintiffs have not been diligent in seeking discovery, less diligence would have been required had this court and the parties not embraced an erroneous understanding of the discovery cutoff applicable under Code of Civil Procedure § 599. The responsibility for the delay in this discovery is therefore not borne by Plaintiffs alone. Allowing depositions to proceed in accordance with section 599 would further purposes of the Discovery Act, which is to “enhance the truth-seeking function of the litigation process and eliminate trial strategies that focus on gamesmanship and surprise.” (Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389, disapproved on other grounds by Brown v. USA Taekwondo (2021) 11 Cal.5th 204.)

Accordingly, Plaintiffs’ motion to reopen discovery is GRANTED. Plaintiffs are permitted to depose Defendants, and Defendants are permitted to depose Plaintiffs.