Judge Kerry Bensinger, Case Number: 22STCV37365, Date: 2024-02-20 Tentative Ruling

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The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

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**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On November 29, 2022, Plaintiff, Jacquelyn Cardinale, filed a complaint against Defendant, Lawry’s Restaurants, Inc., alleging various causes of action arising from her employment with Defendant. On January 20, 2023, Plaintiff filed the operative First Amended Complaint (FAC).

On February 27, 2023, Defendant filed a motion to compel arbitration. The court denied the motion on June 26, 2023. The court set the trial date for July 8, 2024.

Thereafter, the parties agreed to stay discovery and participate in early mediation. The mediation took place on November 15, 2023. The parties were unable to settle the case.

On January 8, 2024, Defendant filed an Ex Parte Application to Continue Trial Date and All Related Deadlines due to Defendant’s lead counsel’s maternity leave. Based on the foregoing, the court continued the trial date to January 13, 2025. The court cannot continue discovery and pretrial deadlines by ex parte application. As such, the court stated that the parties could seek to continue discovery cut-off deadlines by stipulation or noticed motion.

Defendant now moves for an order continuing discovery and all pre-trial deadlines to the new trial date.

“[A]ny 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 the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).) “Except as provided in Code Civ. Proc. § 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc., § 2024.020, subd. (b).) “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.” (Code Civ. Proc., § 2024.050, subd. (a).) Code Civ. Proc., § 2024.050 specifically allows a discovery motion to be heard after the discovery motion cutoff date. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.)

In assessing a motion brought under Code Civ. Proc., § 2024.050, a court assesses the following factors: (1) necessity and the reasons for 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).) A court has discretion whether to grant a motion brought under Code of Civil Procedure Section 2024.050. (Code Civ. Proc., § 2024.050, subd. (b).)

Defendant argues good cause exists to continue discovery and all pre-trial deadlines because essential discovery remains outstanding. For instance, Defendant has not been able to depose Plaintiff due to her deposition demands or obtain sufficient discovery responses from Plaintiff. (Hernandez Decl., ¶¶ 9, 11.) Defendant further represents that it wishes to file a motion for summary judgment. A summary judgment motion would need to be filed by March 2024 which, given the outstanding discovery, would be nearly impossible to accomplish. For these reasons, Defendant requests to have discovery and all pretrial deadlines set to the new trial date of January 13, 2025.

Plaintiff contends the motion should be denied because Defendant has not diligently pursued discovery. She further contends extending discovery will prejudice her.

Defendant’s arguments prevail. Plaintiff does not demonstrate Defendant has been less than diligent in conducting discovery. Nor does she address Defendant’s argument that she has placed unreasonable conditions on the taking of her deposition. Instead, Plaintiff represents a trial continuance will prejudice but her argument is undeveloped and lacks factual support.

Based on the foregoing, setting discovery and all pretrial deadlines to the new trial date is warranted. Discovery is not complete. The court also notes the operative complaint has been at issue for little over a year and the parties stipulated to staying discovery while participating in mediation. The court finds good cause exists to extend discovery.

The motion is GRANTED. All discovery cut-off dates, all pretrial deadlines including discovery, expert, and motion cut-off dates are continued to the new trial date of January 25, 2025.

Kerry Bensinger

Judge of the Superior Court