Judge: H. Jay Ford, III, Case: 21SMCV01433, Date: 2024-07-16 Tentative Ruling

Case Number: 21SMCV01433    Hearing Date: July 16, 2024    Dept: O

  Case Name:  Askari v. Horwich, et al.

SUBJECT:                 MOTION TO REOPEN DISCOVERY TO ALLOW PROPERTY INSPECTION

MOVING PARTY:   Defendant/Cross-Complainants James and Ada Horwich

RESP. PARTY:         Plaintiff/Cross-Defendant Adam Askari

TENTATIVE RULING

            Defendant/Cross-Complainants James and Ada Horwichs’ Motion to Reopen Discovery to Allow Property Inspection is GRANTED. The Court orders discovery reopened for the limited purposes of allowing the Defendant/Cross-Complainants’ Property Inspection.

            Plaintiff/Cross-Defendant Adam Askari’s RJN is GRANTED as to the existence of articles, court documents, and the administrative ruling documents, but not to the “truth of the hearsay statements in the documents.” (In re Vicks (2013) 56 Cal.4th 274, 314.) The Court notes that the discovery cutoff date was 3-11-24, not 3-8-24 as stated in the opposition.

REASONING

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 Code Civ. Proc., § 2024.020.)  “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.)  The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿ (See Code Civ. Proc., § 2024.050, subd. (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.  (See Code Civ. Proc., § 2025.050, subd. (b); see also  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].)   

            Defendants/Cross-Complainants James and Ada Horwich (the “Horwiches”) request that discovery be reopened so that they may complete the property inspection of Plaintiff/Cross-Defendant Adam Askari’s (“Askari”) property. The Horwiches establish necessity by explaining that the inspection is “critical” to their claims and defenses made in the Complaint and Cross-Complaint. (Motion, p. 8:2–5.) Inspection of the property is essential to determine the Tennis court noise levels and the decibels generated by Askari’s sound system.

            The Horwiches establish their diligent efforts to inspect the property prior to the discovery cutoff date of 3-11-24. The initial demand to inspect the property was served on 7-6-23, with an inspection date initially set for of 8-11-23, however Askari did not repond or object to the demand. (Ruttenberg Decl., ¶ 2, Ex. A.) The Horwiches repeatedly met and conferred with Askari beginning in August 2023 regarding the property inspection demand, but Askari refused. (Ruttenberg Decl., ¶ 3; Ex. B.) The Horwiches establish why the motion was not heard prior to the discovery deadline because both parties were “in frequent contact, getting along, and actively discussing settlement in earnest.” (Ibid.) The Horwiches declare that they continued to make efforts to inspect the property up until 4-10-24 but no inspection date was ever agreed upon, and no response was given on the last attempt. (Id., ¶¶ 3, 4; Ex. C.) Thus, the Horwiches establish their diligent efforts to conduct the inspection, and the reasons the discovery was not completed or that the discovery motion was not heard earlier.

            The Trial is set for 10-14-24, around five months away, and with the limited nature of the discovery request a further trial continuance should not be necessary. Furthermore, the Horwiches filed this motion on 4-19-24, less than a month after the discovery motion cut-off date of 3-25-24. Due to the ongoing communication and efforts to settle the case between the parties, this is reasonable amount of time after the cut-off to file the motion to reopen discovery.

            Additionally, Askari does not provide persuasive evidence showing Askari will suffer any prejudice if discovery is reopened for this limited purpose

            For these reasons, the Horwiches motion to reopen discovery is GRANTED pursuant to CCP §2024.050.