Judge Kerry Bensinger, Case Number: 20STLC02864, Date: 2024-05-30 Tentative Ruling

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On March 30, 2020, Plaintiff TCR Services, Inc. (“TCR” or “Plaintiff”) filed this action for breach of construction contract and related claims against Defendants AWI Builders, Inc. (“AWI”), Great American Insurance Company, and The Hanover Insurance Company (“Defendants”). This action was originally filed in limited jurisdiction court. The operative pleading is the First Amended Complaint which alleges causes of action for (1) Recovery of stop Payment Notice Release Bond, (2) Recovery on Contractor’s License Bond, and (3) Recovery on Contractor’s Payment Bond.

· Plaintiff filed the Complaint on March 30, 2020 in limited jurisdiction court.

· On November 2, 2022, the court granted AWI’s ex parte application to continue trial and trial related dates. The court continued the trial date to March 28, 2023 and set all discovery and motion cutoffs to the new trial date.

· Concerned that Defendants produced altered and fabricated documents which they obtained from the City of Pasadena, Plaintiff filed multiple public records request with the City of Pasadena to obtain copies of the original documents. Plaintiff finally receives the documents on February 22, 2023. Plaintiff soon after files a motion to amend the complaint.

· The limited jurisdiction court granted Plaintiff’s ex parte application to continue trial on March 17, 2023. Trial was continued to July 11, 2023.

· On May 16, 2023, the court granted Plaintiff’s motion for leave to file the First Amended Complaint (FAC). The FAC. On the same day, the court granted Plaintiff’s motion to reclassify this action to a court of unlimited jurisdiction.

· Plaintiff serves AWI with Request for Admissions (RFA) and Form Interrogatories (FROG) on August 25, 2023.

· AWI serves objection-only responses on September 26, 2023 on the grounds that the request were untimely.

· On February 22, 2024, the court suggested to the parties at an informal discovery conference that they stipulate to reopen discovery. Thereafter, Plaintiff secured the first available date of May 30, 2024 for the hearing of this motion.

On April 4, 2024, Plaintiff filed this Motion to Reopen Discovery for the limited purpose of obtaining AWI’s substantive responses to Plaintiff’s discovery. Defendants oppose and Plaintiff replies.

Except as otherwise provided, 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 of the action.¿ (Code Civ. Proc., § 2024.020, subd. (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 demonstrating a good faith effort at informal resolution.¿ (Code Civ. Proc., § 2024.050, subd. (a).)¿¿¿¿¿¿¿

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (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).)

Upon consideration of the relevant factors, the Court finds good cause exists to reopen discovery.

1) The necessity of and reason for discovery: Plaintiff obtained multiple documents from the City of Pasadena which substantially differ from those authored by Plaintiff or provided by Defendants. Plaintiff seeks Defendants response under oath regarding the facts and genuineness of the documents. A primary tenet of the judicial system is to try cases on the merits. (Au-Yang v. Barton (1999) 21 Cal.4th 958, 963.) This factor weighs heavily in Plaintiff’s favor.

2) Diligence or Lack of Diligence; Reasons Discovery Was Not Completed; Earlier Hearing for the Motion: Plaintiff submitted multiple public records requests to the City of Pasadena and received the documents two and a half years later. As such, Plaintiff could not conduct discovery regarding these documents until Plaintiff had possession of the documents. In other words, Plaintiff did not delay in pursuing discovery. Further, because Plaintiff was restricted to one deposition in the limited jurisdiction court, the delay in obtaining documents from the City of Pasadena prevented scheduled depositions of AWI’s person most qualified from going further.

Defendants argue that Plaintiff delayed in bringing this motion. Central to Defendants argument is the belief that discovery was tied to the prior trial date of March 28, 2023 and not continued to the new trial date of October 14, 2024. Plaintiff contends discovery was automatically continued to the new trial date when this case was reassigned to an unlimited jurisdiction court. This issue was raised at the February 22, 2024 IDC. To clear up the issue, the court directed Plaintiff to bring a noticed motion. Plaintiff reserved the first available hearing date and timely filed this motion. Plaintiff did not delay. This factor weighs in Plaintiff’s favor.

3) Likelihood Permitting Discovery Will Prevent The Case From Going To Trial; Interfere With The Trial Calendar; Result In Prejudice: Granting the motion will not result in a continuance. At the February 22, 2024, IDC, the parties agreed that if the court granted this motion, discovery would be due thirty (30) days from the date of the court’s order. This factor also weighs in Plaintiff’s favor.

4) The Length Of Time Between The Prior Trial Date And The Date Presently Set: The prior trial date was March 28, 2023. The current trial date is October 14, 2024.

After balancing the factors and considering the equities, the Court grants the motion to reopen discovery for the limited purpose of allowing Plaintiff to obtain AWI’s discovery responses, and if necessary, to file motions to compel.

The motion to reopen discovery is GRANTED. Discovery is reopened for the limited purpose of allowing Plaintiff to obtain AWI’s discovery responses to Plaintiff’s August 25, 2023 discovery. This includes the filing of motions to compel should Defendant object to that discovery. AWI’s discovery responses are due thirty (30) days from the date of this order. Expert discovery cut-off dates are to run from the current trial date of October 14, 2024.

Kerry Bensinger

Judge of the Superior Court