Judge Jill Feeney, Case 19STCV38944 2022-12-20 Tentative Ruling

On October 29, 2019, Plaintiff Luz Maria Paz Canteros filed her complaint against Defendants the County of Los Angeles, the City of South Gate, Los Angeles Unified School District, and Does 1 through 250. Plaintiff brings a cause of action for governmental tort liability, alleging she tripped and fell on a sidewalk in South Gate, California in 2019.

Plaintiff argues that good cause exists to reopen discovery because Plaintiff requires more time to depose Defendant City of South Gate’s (“City”) person most knowledgeable (“PMK”). Plaintiff noticed the deposition on July 7, 2022, and mistakenly believed it was taken off calendar due to a miscommunication. Plaintiff attempted to reschedule the deposition and City’s counsel repeatedly refused.

“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.” (Code Civ. Proc., § 2024.050, subd. (a).)

“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; 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.” (Code Civ. Proc., § 2024.050, subd. (b)(1)-(4).)

“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.” (Code Civ. Proc., § 2024.050, subd. (c).)

Plaintiff originally scheduled the deposition of City’s PMK for July 7, 2022. (Abrahamian Decl., ¶4.) Plaintiff’s counsel, Martinian & Associates, retained Jennifer Morgan Craig-Ford to take the PMK deposition and an expert deposition for a different case that week. (Id., ¶5.) Plaintiff’s counsel’s office mistakenly informed Craig-Ford that the PMK deposition was off-calendar. (Abrahamian Decl., ¶5; Craig-Ford Decl., ¶4.) Martinian & Associates contacted Craig-Ford one hour after the noticed time for the deposition asking why she had not appeared for the deposition. (Craig-Ford Decl., ¶5.) Martinian & Associates meant to cancel the expert deposition on a different case and mistakenly canceled the PMK deposition for the present case. (Craig-Ford Decl., ¶5.)

After Craig-Ford failed to appear at the deposition, Plaintiff’s counsel testifies that she requested to reschedule the PMK deposition to a date before City’s motion for summary judgment. (Abrahamian Decl., ¶10.) City’s counsel never responded to the request. (Motion, p. 6.) After City’s motion for summary judgment was denied, Plaintiff’s counsel requested to reschedule the deposition. (Id.) City’s counsel refused to reschedule the deposition because City was planning to seek a writ. (Id.) After the writ was denied, Plaintiff’s counsel discussed the deposition with City’s counsel telephonically and City’s counsel refused. (Id., ¶12.) Plaintiff again requested to reschedule the deposition prior to filing this motion and City’s counsel failed to respond. (Id., ¶14.)

Plaintiff alleges that the deposition is necessary because Plaintiff and her experts require more information related to the construction, maintenance, notice, and control of the sidewalk at issue in this case. (Abrahamian Decl., ¶13.) Plaintiff contends that City was mistaken as to which sidewalk Plaintiff tripped over, meaning the written discovery may have been inaccurate. (Id.) The PMK deposition is necessary to clarify whether the written discovery was accurate and whether further discovery is necessary. (Id.)

Plaintiff argues that the PMK deposition is necessary because it is unclear whether City’s written discovery responses were accurate because City was mistaken as to which sidewalk Plaintiff tripped over. Additionally, Plaintiff and her experts require more information related to the construction, maintenance, notice, and control of the sidewalk. City does not dispute that it was mistaken over which sidewalk Plaintiff tripped over. Because Plaintiff requires the deposition testimony determine whether City’s written discovery responses were accurate, the deposition is necessary.

Plaintiff’s counsel testifies that she attempted to reschedule the PMK deposition before the hearing on City’s motion for summary judgment and City never responded to the request. (Motion, p. 5.) After City’s motion for summary judgment was denied on August 8, 2022, she requested to reschedule the PMK deposition. City’s counsel refused because he was seeking a writ. The writ was denied on September 29, 2022. (Navarette Decl., ¶9.) Thereafter, Plaintiff’s counsel testifies that she met and conferred telephonically with City’s counsel and requested that the deposition be rescheduled. City’s counsel refused. City’s counsel testifies that he is not aware of any effort made by Plaintiff’s counsel’s office to reschedule the deposition. (Navarette Decl., ¶7.)

The Court finds that Plaintiff’s counsel diligently requested to reschedule the PMK deposition between August 2022 and November 2022. It is unclear why City’s counsel never received or never responded to Plaintiff’s requests to reschedule the deposition. City’s counsel does not address Plaintiff’s claims that her counsel requested to reschedule the deposition. Because Plaintiff failed to appear for the original deposition due to error and then repeatedly requested to reschedule the deposition, the Court finds Plaintiff was diligent in pursuing this deposition.

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.

Plaintiff only seeks to reopen discovery for one deposition. City does not state in its opposition that it would be prejudiced if Plaintiff is allowed to take the deposition. Plaintiff does allege that she would be prejudiced if she is not allowed to take the deposition to clarify whether City’s written discovery was accurate. (Abrahamian Decl., ¶13.) Given that trial is nearly two months away in February 2023, this factor weighs in favor of reopening discovery.