Judge: Latrice A. G. Byrdsong, Case: 22STLC01369, Date: 2023-09-28 Tentative Ruling

Case Number: 22STLC01369    Hearing Date: September 28, 2023    Dept: 25

Mochayoff v. Gordan, et al.

22STLC01369 

ANALYSIS:

 

I.                Background

 

            Plaintiff alleges Defendant ordered $13,815.56 worth of customized prescription lenses.  Plaintiff alleges Defendant failed to pay for the lenses. 

 

COMPLAINT FILED ON 3-1-22

1st c/a—breach of written contract

2nd c/a—fraud and deceit based upon intentional misrepresentation

3rd c/a—breach of implied covenant of good faith and fair dealing

4th c/a—unjust enrichment

           

 II.              Legal Standard

            Discovery in a limited action is permitted only to the extent provided by in Code of Civil Procedure section 94, which includes any combination of 35 written discovery requests and one oral or written deposition. (Code Civ. Proc., § 94.) Under Code of Civil Procedure section 95, subdivision (a),

 

The court may, on noticed motion and subject to such terms and conditions as are just, authorize a party to conduct additional discovery, but only upon a showing that the moving party will be unable to prosecute or defend the action effectively without the additional discovery. In making a determination under this section, the court shall take into account whether the moving party has used all applicable discovery in good faith, and whether the party has attempted to secure the additional discovery by stipulation or by means other than formal discovery.

 

(Code Civ. Proc., § 95, subd. (a).)

 

III.            Discussion

 

Defendant asks that the Court grant leave to propound additional discovery in the form of:  (1) RFAs (Set One), Form Interrogatories (Set One), Requests for Production (Set Two) and Special Interrogatories (Set Two).  Defendant argues he attempted to obtain certain phone records from Plaintiff in discovery that was already propounded but Plaintiff did not produce these records, claiming that such records did not exist and/or were not in his possession.  Defendant argues he only discovered the existence of the phone records after deposing Plaintiff on 6-19-23.  Defendant argues the phone records are crucial to his defense, because they are the basis for Plaintiff’s fraud claim. 

 

Defendant failed to provide a proof of service of the motion for additional discovery.  For this reason, the motion is continued.   


In addition, the discovery cutoff expired on 7-29-23.  Although the Court granted Defendant’s ex parte application to continue trial date on 7-14-23, it denied Defendant’s request to continue the discovery cutoff.  Any request to propound additional discovery must be preceded by a motion to reopen discovery and discovery motion cut-offs pursuant to CCP §2024.050. 

 

IV.            Conclusion & Order

Defendant’s Motion for Court Order Requesting Permission to Conduct Additional Discovery on Plaintiff pursuant to CCP §95(a) is CONTINUED to OCTOBER 30, 2023 at 10:00 a.m. in DEPARTMENT 25 OF THE SPRING STREET COURTHOUSE to allow Counsel for the moving party time to provide proof of service in conformity with CCP §§1005, 1013, as discussed herein, at least 16 court days before the next scheduled
hearing.  Failure to do so will result in the Motion being
placed off calendar or denied.

 

Moving party is ordered to give notice.