Judge: H. Jay Ford, III, Case: 20SMCV01465, Date: 2022-12-15 Tentative Ruling

Case Number: 20SMCV01465    Hearing Date: December 15, 2022    Dept: O

  Case Name:  Topper v. Haworth, et al.

SUBJECT:                 MOTION TO REOPEN DISCOVERY    

MOVING PARTY:   Plaintiff Doreen Topper, R.N.

RESP. PARTY:         (1) Defendant Gary Motykie, MD

                                    (2) Defendant Randall Haworth, MD

TENTATIVE RULING

            Plaintiff Doreen Topper, RN’s Motion to Reopen Discovery is DENIED.  Defendant Motykie’s request for sanctions in the amount of $1,245.50 is GRANTED.

            Defendant Haworth’s Objections to Rudd Declaration are OVERRULED.

I.  Requested discovery

            Plaintiff moves to reopen discovery to do the following:

(1)  Pursue a motion to compel a further deposition of Haworth;

(2)  Complete Motykie’s deposition;

(3)  File motions to compel further responses to written discovery propounded on Haworth and Motykie;

(6)  Conduct expert discovery;

(7)  Conduct discovery in connection with newly served Defendant Marc Lussier, MD.

II.  Plaintiff fails to demonstrate good cause to reopen discovery under CCP §2024.050

            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 trial.  See CCP 2024.020.  The initial trial date was November 7, 2022.  The deadline to complete discovery expired on October 8, 2022.  The last day to hear motions to compel discovery expired on October 21, 2022.  The last day to timely file and serve motions to compel discovery expired on October 14, 2022.  When the Court continued the trial to February 6, 2023, the Court did not order the discovery deadline extended based on the new trial date

 “The purpose of imposing a time limit on discovery is to expedite and facilitate trial preparation and to prevent delay.¿ Without a cutoff date, the parties could tie up each other and the trial court in discovery and discovery disputes right up to the eve of trial or beyond. Furthermore, . . . to be effective the cutoff date must be firm or some litigants will manipulate the proceedings to avoid the cut-off date.”  Beverly Hosp. v. Superior Court¿(1993) 19 Cal.App.4th 1289, 1295. 

“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.”  CCP §2024.050(a).  The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿ CCP §2024.050(a), (b).

Pursuant to CCP §2024.050, 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; and (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.  CCP §2025.050(b); see Cottini v. Enloe Medical Center (2014) 226 Cal.App.4^th 401, 420-421 (trial court properly denied request to reopen discovery to conduct expert discovery where moving party refused to disclose grounds for late expert witnesses and failed to demonstrate diligence in seeking discovery prior to the cutoff date). 

            The necessity and the reasons for discovery.  Defendant Haworth was already deposed twice.  Plaintiff fails to explain why a third session of deposition is necessary.  Defendant Motykie is a party the Court can reasonably assume his  deposition is necessary.  Defendant Lussier has not appeared.  Lussier’s motion to quash is pending.  Plaintiff has not addressed or shown why expert discovery is needed.  Plaintiff fails to show that further responses to Plaintiff’s written discovery from Motykie and Haworth are necessary.

Plaintiff’s diligence or lack of diligence.  Plaintiff fails to address the diligence prong of the requirements under CCP §2024.050.  Plaintiff provides no satisfactory explanation for his failure to complete Haworth’s deposition or to properly notice Motykie’s deposition.  Plaintiff did not depose Haworth until 8-31-22, nearly two years after the complaint was filed.  Plaintiff offers no explanation for her failure to notice Motykie’s deposition. Motykie has been named as a defendant since the action was filed.

In addition, it appears Plaintiff’s desired motions to compel further responses would be time-barred by the 45-day deadline.  Plaintiff fails to provide any explanation for her failure to move to compel further responses earlier. 

Plaintiff argues she failed to complete expert discovery because she has not yet completed percipient discovery. Plaintiff fails, however, to explain why she has not completed percipient discovery or otherwise sought leave to serve a expert witness designation.

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.  All parties acknowledge that reopening of discovery will require the trial date to be continued.

The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.  The previous trial date was set on 11-7-22. The new trial date is set for 2-6-23.  There are three months between the two trial dates.

            No good cause to reopen discovery.  Plaintiff fails to satisfy any of the criteria to demonstrate good cause to reopen discovery under CCP §2024.050.  Plaintiff’s motion to reopen discovery is DENIED. 

III.  Motykie’s Request for Sanctions is GRANTED.

            “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  CCP §2024.050(c).