Judge: Laura A. Seigle, Case: BC475956, Date: 2023-05-18 Tentative Ruling

Case Number: BC475956    Hearing Date: May 18, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION TO COMPEL FURTHER DEPOSITION ANSWERS AND FOR SANCTIONS

            This case was initially filed on December 27, 2011.  Defendant Union Carbide Corporation was not named in the December 27, 2011 complaint.  On September 25, 2014, Plaintiffs sued Union Carbide in another case that was eventually consolidated with this case.  On September 20, 2016, November 3, 2016, and August 24, 2018, Plaintiffs noticed the deposition of the PMQ of Union Carbide Corporation.  Union Carbide objected to these notices.  Apparently Plaintiffs never filed a motion to compel the deposition pursuant to these notices. 

            After a trial, appeal and remand, on June 1, 2021, August 31, 2021, and February 25, 2022, Plaintiffs again served deposition notices for the PMQ of Union Carbide.  Union Carbide again objected.  Again Plaintiffs did not file a motion to compel the deposition.  Instead, on April 14, 2022, Plaintiffs filed an ex parte application to compel the deposition, and the court set a hearing on the application.  On May 26, 2022, the court ordered Union Carbide “to submit to a PMQ deposition” and sustained certain objections to categories of examination.  (May 26, 2022 Ruling at p. 1.) 

            After the May 26, 2022 ruling, the deposition did not take place.  On September 14, 2022, October 20, 2022, February 9, 2023, and March 21, 2023, Plaintiffs served additional deposition notices.  Union Carbide objected.  Plaintiffs did not file any motion to enforce the May 26, 2022 order.

By March 2023, the trial had been continued many times.  For example, at the November 1, 2022 final status conference, when the trial date was scheduled for November 7, 2022, the parties were not ready for trial.  The court directed the parties to meet and confer about a plan for preparing for trial.  (Nov. 1, 2022 Minute order at p. 12.)  On November 7, 2022, the court continued the trial to December 12, 2022 and directed the parties to meet and confer on a real trial date when they would be ready.  (Nov. 7, 2022 Minute order at p. 2.)  By December 12, 2022, the parties had still not prepared for trial, and the court continued the trial date to April 10, 2023, with a final status conference on March 27, 2023.  Thus, by March 27, 2023, the parties had had chance after chance to finish discovery and prepare for trial. 

At the March 27, 2023 final status conference, Plaintiffs stated they still had not deposed Union Carbide’s PMQ.  Therefore, the court set a hearing on a motion to compel the deposition of Union Carbide’s PMQ for April 3, 2023, with Plaintiff’s motion to compel to be filed by March 28, 2023 and an opposition to be filed by March 30, 2023.  Plaintiffs filed the motion to compel the deposition on March 28, 2023.  On April 3, 2023, the court granted the motion to compel and ordered the deposition to be completed by April 14, 2023.  The court did not continue the trial “[b]ecause the parties have had multiple trial continuances and plenty of time to complete the deposition.”  (April 3, 2023 Minute Order at p. 1.) 

On the April 10, 2023 trial date, the court continued the trial to May 1, 2023 so that the parties could file a revised witness list and due to the court’s unavailability.  In continuing the trial date, the court expressly stated no other dates were continued.  (April 10, 2023 Minute Orde at p. 1.) 

On April 14, 2023, the deposition of Union Carbide’s PMQ took place.  On April 24, 2023, Plaintiffs filed this motion for an order compelling further answers, seeking monetary sanctions, and requesting issue and evidence sanctions. 

On May 1, 2023, the court called the case for trial, a trial judge was assigned, one side exercised a peremptory challenge, another trial judge was assigned, the other side exercised a peremptory challenge, and because no other trial judges were available the court continued the trial to May 4, 2023.  On May 4, 2023, the case was sent out to trial. 

Thus, by April 24, 2023 when Plaintiffs filed this motion to compel further answers and for sanctions, fact discovery was closed, the deadline to file discovery motions had passed, and the continued trial date was in seven days.  (Code Civ. Proc., § 2024.020, subd. (a).)  While the court can reopen discovery (Code Civ. Proc., § 2024.050, subd. (a)), Plaintiffs did not file a motion to reopen discovery.  The April 24, 2023 motion does not ask for discovery to be reopened, does not mention section 2024.050, and does not directly address the factors listed in section 2024.050, subdivision (b).

In particular, Plaintiffs do not explain why they waited for years to file a motion to compel after first serving a notice for the Union Carbide deposition in 2016, and then why they did not file a motion for sanctions or to enforce the May 26, 2022 order when Union Carbide did not make the PMQ witness available for a deposition as ordered.  Instead, Plaintiffs waited ten months to file another, last-minute motion to compel in March 2023.  Plaintiffs did not diligently pursue the hearing of discovery motions to compel the deposition, nor did Plaintiffs diligently pursue enforcement of the May 26, 2022 order.  Many trial dates have been set and continued, yet Plaintiffs did not timely complete discovery.  Thus, even if Plaintiffs have good reasons for seeking the deposition of the Union Carbide PMQ, they utterly failed to act diligently in obtaining it.  At this point, the parties have selected a jury and are in trial.  Reopening discovery and hearing yet another motion to compel the deposition will interfere with the trial proceedings. 

The motion is DENIED.

The moving party is to give notice.