Judge Loren G. Freestone, Case 37-2020-00027803-CU-FR-CTL 2024-01-12 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2020-00027803-CU-FR-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 04, 2024

01/05/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Fraud Motion Hearing (Civil) 37-2020-00027803-CU-FR-CTL GUTHERY VS CULP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiffs Sebastian Guthery and Nine2Five LLC's motion to reopen discovery under Code of Civil Procedure section 2024.050 is DENIED.

Plaintiffs' alternative motion for relief under Code of Civil Procedure section 473(b) is DENIED.

Preliminary Matters Plaintiffs' unopposed request for judicial notice of various documents on file in this case is granted.

Plaintiffs' evidentiary objections to Paragraph 7 of the Declaration of Daniel Callaway, and to Exhibits 1–5 attached to ROA #351, are sustained. Plaintiffs' other evidentiary objections are overruled.

Motion to Reopen Discovery 'The purpose of imposing a time limit on discovery is to expedite and facilitate trial preparation and to prevent delay. . . . [T]o be effective the cutoff date must be firm or some litigants will manipulate the proceedings to avoid the cut-off date.' (Beverly Hospital v. Superior Court (1993) 19 Cal.App.4th 1289, 1295.) 'Once the discovery cutoff date has run and discovery has closed, the only means provided in the Civil Discovery Act for reopening discovery is a motion for leave of court.' (In re Marriage of Boblitt (2014) 223 Cal.App.4th 1004, 1024–1025; see Code Civ. Proc., § 2024.050.) 'In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (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); see Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1589–1590 [delay until two months before initial trial date, and marginal relevance of the documents sought, weighed against reopening discovery].) Calendar No.: Event ID: TENTATIVE RULINGS

3058334 33 CASE NUMBER: CASE TITLE: GUTHERY VS CULP [IMAGED] 37-2020-00027803-CU-FR-CTL Necessity and Reasons for the Discovery As to the first factor, Plaintiffs assert that they need 'bank statements, purchase and sales records, accounting records, customer lists [and] similar documents and information' to establish that Defendants misappropriated trade secrets. Plaintiffs also assert that they need unspecified discovery from Defendants Riley Culp and Sancho Group Inc., and unspecified follow-up discovery from Defendants Janice Culp, Biogrow Organics Inc., and So Cal Soil Inc. 'encompass[ing] a broad set of facts' related to the claims against Riley Culp and Sancho Group to prove a conspiracy. Plaintiffs' counsel opines that such discovery 'is necessary for the Plaintiffs to obtain a fair trial on the merits.' Plaintiffs fail to state specifics needed to show the necessity and reasons for the discovery. Plaintiffs do not adequately explain why the discovery they have obtained (including thousands of pages of Defendants' documents, responses to interrogatories, the testimony of Defendant Janice Culp through five depositions, the testimony of Defendant Riley Culp through two depositions, and the deposition testimony of six other witnesses), in conjunction with their own documents and any other evidence they may have independently gathered, are insufficient to fairly present their case.

Diligence/Lack of Diligence As to the second factor, Plaintiffs argues that their prior counsel was diligent by propounding discovery in September 2021 (more than a year after the case was filed), including requests for production of the documents at issue. Plaintiffs also argue they were diligent in moving to compel initial responses in November 2021.

Plaintiffs' motions to compel initial responses were denied because initial responses had been served by the time of the hearing. (ROA #166; see Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 409 [when initial responses have been served after motion to compel initial responses is filed, court has discretion to deny the motion/take the motion off calendar].) Plaintiffs now argue that ruling was erroneous, in part because the court purportedly did not rule on a motion to compel further responses. Yet, that was not the motion on calendar (see Super. Ct. San Diego County, Local Rules, rule 2.1.19.A), nor was it properly prepared given the prerequisites required before filing such a motion, including a good faith meet and confer effort over the responses, and a separate statement that includes a proper statement of the factual and legal reasons for compelling further responses as to each matter in dispute (see Code Civ. Proc., § 2031.310, subd. (b)(2); Cal. Rules of Court, rule 3.1345(c)(3)). (See ROA #166.) Moreover, Plaintiffs' prior counsel submitted on the ruling without argument. (ROA #166.) Regardless, the issue on this motion is not whether the order was correct, but how diligent Plaintiffs were thereafter.

Notably, the order indicated that Plaintiffs could reserve and file motions to compel further responses and/or motions to compel compliance if issues could not be resolved informally through meet and confer.

(ROA #166; see Sinaiko, supra, 148 Cal.App.4th at p. 409 [when party moving to compel initial responses receives initial responses after the motion is filed, but is dissatisfied with the sufficiency of those responses, the court has discretion to direct the moving party to meet and confer, file a separate statement, and/or file new motions under appropriate code sections].) No such motions were ever filed.

Plaintiffs speculate that the reason such motions were never filed is because of a breakdown in the attorney-client relationship that ultimately resulted in their attorney moving to be relieved after the discovery cutoff. Defendants, however, submit evidence that Plaintiffs were not been abandoned during this time, and that their prior attorney continued to actively prepare the case for trial, including preparation of a joint trial readiness conference report, jury instructions, exhibits, and oppositions to motions in limine. Thus, Plaintiffs' former counsel should have also been able to file the referenced motions to compel further responses or compel compliance, or alternatively a motion to continue the discovery cutoff date.

Moreover, after their prior counsel was relieved in March 2023, Plaintiffs themselves were not diligent in Calendar No.: Event ID: TENTATIVE RULINGS

3058334 33 CASE NUMBER: CASE TITLE: GUTHERY VS CULP [IMAGED] 37-2020-00027803-CU-FR-CTL seeking to reopen discovery. Plaintiffs did not move to reopen discovery between March 2023 and May 2023 (at which point the case was stayed), nor did they move to reopen discovery between August 2023 (at which point the stay was lifted) and November 2023. Plaintiffs did not move to reopen discovery until December 2023-9 months after the cutoff.

Impact on Trial /Prejudice to Defendants As to the third factor, Plaintiffs argue that it is inapplicable because there is no trial date currently set.

This factor looks not only whether reopening discovery 'will prevent the case from going to trial on the date set,' but also whether reopening discovery will 'otherwise interfere with the trial calendar, or result in prejudice to any other party.' (Code Civ. Proc., § 2024.050, subd. (b)(3).) Reopening discovery would impact when this matter can be set for trial. As noted above, it appears that pretrial documents were previously prepared. In August 2023, Plaintiffs represented that they would be ready for trial in 180 days (i.e., February 2024). (ROA #317.) However, in the event this motion is granted and discovery is reopened, Plaintiffs now indicate that the matter will not be ready for trial until at least another 180 days (i.e., July 2024). That is an additional five-month delay.

Reopening discovery would also be prejudicial to Defendants. Additional discovery and several additional months of litigation and delay in a case that is already 3 ½ years old is not without cost-both financial and emotional.

Length of Time Between Prior Trial Dates As to the fourth factor, Plaintiffs again argue that it is inapplicable because there is no trial date currently set.

This factor looks at 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)(4).) Thus, whereas the third factor looks at how long trial will be delayed if discovery is reopened, the fourth factor looks at how long trial has already been delayed. (Compare id. at subd. (b)(3) with (b)(4).) This matter has already had a series of delays. Trial was initially set for July 2022. (ROA #64.) After the case was reassigned to Department 64, the trial date was reset for October 2022. (ROA #111.) The parties then stipulated to move the trial date again to April 2023. (#145.) When Plaintiffs' counsel was relieved, the matter was continued two months to allow Plaintiffs time to find new counsel. (ROA #259.) The matter was then continued again because Plaintiffs were having difficulty finding new counsel and were planning on filing a motion to stay. (ROA #299.) The case was thereafter stayed based on criminal proceedings against Guthery. (ROA #313.) Two-and-a-half months later Plaintiffs indicated they would be ready for trial if given another 180 days (i.e., February 2024)-approximately 1 ½ years after the initial trial date. (ROA #317.) Conclusion Having considered the totality of the circumstances, the court does not find good cause to reopen discovery. The motion to reopen discovery is therefore denied.

Motion for Relief Plaintiffs alternatively request 'the court consider the past mistakes of its prior counsel as further grounds for reopening discovery' under the discretionary provision of Code of Civil Procedure section 473, subdivision (b). Plaintiffs assert that their prior counsel 'made mistakes or had misunderstandings regarding the scheduling of the motions to compel on January 14, 2022, the filing of the three motions to compel further responses in May 2022, and/or the filing of the consolidated motion to compel responses, Calendar No.: Event ID: TENTATIVE RULINGS

3058334 33 CASE NUMBER: CASE TITLE: GUTHERY VS CULP [IMAGED] 37-2020-00027803-CU-FR-CTL further responses and document production compliance in September of 2022.' 'Relief under section 473 is unavailable when the discovery act provides analogous, if more limited relief.' (Zellerino v. Brown (1991) 235 Cal.App.3d 1097, 1107; accord Scottsdale Ins. Co. v. Superior Court (1997) 59 Cal.App.4th 263, 274–275.) As set forth above, the Discovery Act includes a section specifically addressed to reopening discovery, preventing relief under the auspice of section 473. (See Code Civ. Proc., § 2024.050; see also id. at § 2024.020 ['Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings'] [emphasis added].) Discretionary relief under section 473(b) is also restricted in several pertinent respects: (1) relief can only be granted if the order or other proceeding was taken against a party through 'mistake, inadvertence, surprise, or excusable neglect'; (2) relief must be sought within a reasonable time and cannot be granted more than six months after the order or proceeding was taken; and (3) the motion must be accompanied by any 'pleading proposed to be filed.' Here, there is no declaration from Plaintiffs' prior counsel (Attorney Hillary Johns) attesting to any mistake, inadvertence, surprise, or excusable neglect with respect to the earlier motions to compel. The only evidence is a conclusory opinion from Plaintiffs' current counsel that 'prior counsel made mistakes or had misunderstandings.' This is not sufficient to meet Plaintiffs' burden. (See Kendall v. Barker (1988) 197 Cal.App.3d 619, 624 [conclusory declaration by current attorney faulting former attorney insufficient to obtain relief under section 473 or to demonstrate positive misconduct].) Moreover, the motions to compel drafted by prior counsel were denied in October 2022. This motion was not filed until more than a year later. Relief under section 473 is therefore unavailable. (See Manson, Iver & York v. Black (2009) 176 Cal.App.4th 36, 42 ['The six-month time limit for granting statutory relief is jurisdictional and the court may not consider a motion for relief made after that period has elapsed'].) Finally, the motion is not accompanied by any discovery requests that Plaintiffs intend to propound, nor a copy of any discovery motions that Plaintiffs intend to file with respect to the discovery previously propounded. (See Rodriguez v. Brill (2015) 234 Cal.App.4th 715, 728–729 [proposed discovery must be attached to motion for relief].) Plaintiffs have failed to establish that they are entitled to relief under section 473. The motion is therefore denied.

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