Judge: Lee S. Arian, Case: 21STCV03774, Date: 2024-03-19 Tentative Ruling

Case Number: 21STCV03774    Hearing Date: March 19, 2024    Dept: 27

Complaint Filed:      1/29/21 

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Hon. Lee S. Arian¿¿¿¿¿ 

Department 27¿¿¿¿¿ 

Tentative Ruling¿¿¿¿¿ 

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Hearing Date:           3/19/2024 at 1:30 p.m.¿¿¿¿¿ 

Case No./Name:       21STCV03774 FIONA ELIZABETH DOOLAN vs NOBU MALIBU, LLC

Motion:                    MOTION TO COMPEL DEPOSITION OF DEFENDANT'S PERSON(S) MOST KNOWLEDGEABLE AND TO PRODUCE DOCUMENTS 

Moving Party:           Plaintiff 

Responding Party:    Defendant Nobu Malibu

Notice:                     Sufficient¿¿¿¿¿ 

Shape¿¿¿¿¿ 

Ruling:                     MOTION TO COMPEL DEPOSITION OF DEFENDANT'S PERSON(S) MOST KNOWLEDGEABLE AND TO PRODUCE DOCUMENTS IS DENIED. 

 

¿                               REQUEST FOR SANCTIONS IS DENIED.

 

 

Background

On January 29, 2021, Plaintiff filed the present slip and fall case. Defendant's PMK deposition was noticed three times: on September 29, 2021, May 2, 2022, and August 18, 2022. From November 2023 to December 2023, Plaintiff has made several attempts to schedule Defendant's PMK deposition, which Defendant allegedly refused to produce. Plaintiff now moves the Court to compel Defendant’s PMK deposition. Defendant argues that the motion is untimely because it was filed after the discovery cutoff date.

Legal Standard

Any party may obtain any discovery of information, documents, land, property, or electronically stored information so long as the discoverable matter is not privileged, is relevant to the subject matter and can lead one to admissible evidence.¿(Code Civ. Proc. § 2017.010.)¿¿ 

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Code Civ. Proc., § 2025.450¿provides in pertinent part the following:¿¿¿ 

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“(a) If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, or a person designated by an organization that is a party under Section 2025.230, without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document, electronically stored information, or tangible thing described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.¿¿ 

 

(b) A motion under subdivision (a) shall comply with both of the following:¿¿ 

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice.¿¿ 

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040 

 

Meet and Confer and Good Cause

Plaintiff has sufficiently demonstrated good cause and engaged in good faith meet and confer efforts with opposing counsel. Defendant does not oppose the motion on these grounds.

Analysis.

January 12, 2024 is the operative trial date of this matter from which deadlines relating to discovery motions are calculated. On December 22, 2023, the court continued the trial date from January 12, 2024 to its current date of May 1, 2024. The court also provided: “It is further ORDERED that unless a motion or event of discovery is otherwise hereafter authorized by an order of the Court, all motion and discovery cut off dates shall be associated with the January 12, 2024 trial date.” Pursuant to C.C.P. § 2024.020, the discovery cut-off date for the present case was December 13, 2023, and the final date to hear a motion was December 28, 2023. The present motion was filed on December 14, 2023, after the discovery cut-off date, and is set to be heard well beyond the December 28, 2023, deadline. The present motion is untimely, and Plaintiff does not dispute this in the reply. Moreover, the Court cannot grant a motion to compel without first deciding on a motion to reopen discovery. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.) After the trial was continued, Plaintiff did not file a motion to reopen discovery; thus, Plaintiff's motion to compel is DENIED.

Plaintiff raises the issue of issue preclusion and evidentiary sanction for the first time in her reply brief as to Defendant’s discovery abuse. However, a party cannot raise new arguments for the first time in a reply brief, as the opposing party would have no opportunity to respond. (Nelson v. Gaunt (1981) 125 Cal.App.3d 623, 641.) Furthermore, Plaintiff did not sufficiently demonstrate discovery abuse by Defendant. The delay appears to be of Plaintiff's own making. Plaintiff’s last PMK deposition notice was served on August 18, 2022, and Plaintiff did not visit the issue of a PMK deposition more than a year later, in November 2023. Plaintiff could have filed the present motion in 2022, but waited until the discovery cut-off to close on December 13, 2023.

Moreover, Plaintiff has not substantiated her claim that Defendant engaged in discovery abuse as the only evidence provided consists of objections Defendant raised to Plaintiff's deposition notice, which do not, without more, evidence discovery abuse. Plaintiff did not produce any other documents to support her claim. Thus, Plaintiff’s request for sanctions is DENIED.

PLEASE TAKE NOTICE:        

     

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.          

   

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.          

   

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.