Judge Mark H. Epstein, Case Number: 20SMCV00636, Date: 2024-11-14 Tentative Ruling

Judge: Mark H. Epstein, Case: 20SMCV00636, Date: 2024-11-14 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 20SMCV00636 Hearing Date: November 14, 2024 Dept: I

Please call the courtroom after 8 am to obtain the court’s tentative ruling on the motion for summary judgment.

As the parties will see, the motion is being denied, which leads to the ex parte. The ex parte is DENIED. Defendant seeks an order compelling plaintiffs’ experts to appear for their depositions. The motion is improper. The case had a much earlier initial trial date. The law is clear that discovery deadlines, including expert discovery deadlines, are tied to the initial trial date unless extended. Thus, a continuation of the trial does not continue the discovery cut off. Of course, often the parties stipulate to extend the deadlines to tie to the later date, or the court can so order even over objection. But unless there is a stipulation or order extending the date, it is tied to the original trial date. As to expert discovery, it must be completed no later than 15 calendar days before the initial trial date.

Here, the parties exchanged expert designations and declarations in a timely fashion. Plaintiffs designated experts. Defendants timely noticed the depositions of plaintiffs’ experts, but they were taken off calendar. That was, in part, due to the summary judgment motion defendants earlier pursued. The court had initially and tentatively thought to grant that motion, but instead allowed further briefing due to the haphazard way the evidence came in. Ultimately, after being continued, the motion was denied, albeit without prejudice. Because the motion was denied but without prejudice, the trial date was extended. Nothing in any of the court’s orders or the parties’ pleadings extended the discovery cut off or suggested as much. Defendants have submitted no email exchanges in which the parties agreed to extend the discovery cut off. Defendants did bring another summary judgment motion, which was tentatively denied earlier and (if the tentative becomes the order of the court) will be finally denied today following further briefing. But in none of those papers did anyone request an extension of the discovery cut off nor did the court so order.

Defendants contend that the discovery cut off was extended automatically by the court’s actions in the summary judgment context and continuation of the trial date before the expert discovery cut off had passed. The court is at a loss as to how counsel can make that argument. There is no case law of which the court is aware that so holds; there is no order of which the court is aware that so rules; and there is no express stipulation of which the court is aware in which it is so agreed. And critically, the Code of Civil Procedure provides expressly and unambiguously to the contrary. Defendants seem to be taking a position that is legally devoid of any support or merit and is utterly inconsistent with the words that the Legislature wrote on the subject. While they set their position out with great confidence, defendants would do better to replace unjustified bravado with authority.

The court anticipates an argument that the court has discretion to grant the motion even so. Such an argument would fail. First, the court is not sure why it ought to exercise its discretion in that way assuming that it has the power to do so. Other than claim that they are being treated unfairly, defendants do not really discuss the factors that would really go into such a decision. But second, and more importantly, the procedure chosen remains the wrong one. The proper, and only, procedure would be a motion to re-open discovery. Such a motion would need to be preceded by a good faith meet and confer between the parties to try and reach an agreement, but if that failed then a motion to re-open could be brought. If granted, then defendants could serve an appropriate deposition notice or subpoena that the court could enforce. (Defendants could have brought both motions together, though.)

While this result might seem an odd process, it is dictated by case law, specifically Pelton-Shepherd Industries, Inc. v. Delta Products, Inc. (2008) 165 Cal.App.4th 1568. There, defendant had allegedly engaged in a pattern of discovery abuse. The plaintiff moved for terminating sanctions and the court granted the motion. Defendant appealed on the ground that the motion was not heard by the time of the discovery motion cut-off date and there was no motion to reopen discovery. The trial court’s decision was reversed. The Court of Appeal stated (somewhat harshly) that the trial court had “botched” its discovery responsibilities and abused its discretion by hearing the motion after the cut off had passed and without a motion to reopen. The appellate court viewed the case as a “classic example” of how not to do discovery by the lawyers or how to manage it as to the court. Plaintiff served various RFP’s, but the demands were such that production was due three days after the discovery cut off. Defendant made no response to the RFP’s, which led to a motion. In opposition to the motion, defendant stated that the matter could not be heard because the deadline had passed. At the hearing on the motion, the parties agreed, and the court ordered, that there would be an MSC on what had been the trial date and to continue the trial. Later, the court denied the motion, but did sanction defendant $500. The MSC was not successful. Notwithstanding defendant’s promise to produce documents, none were in fact produced, leading to a motion to compel responses. Defendant objected, again, on the ground that the discovery cutoff had come and gone and that the deadlines had not been extended by the continued trial date. Plaintiff stated that it would file an ex parte application to clarify the cutoff issue. However, before the hearing, defendant responded to the RFP and produced some responsive documents. Defendant agreed to produce as to some demands, but objected as to others. In the order that followed, the court said that discovery was not reopened but the court would work out any pending issues when it heard plaintiff’s motion to compel the following month. In its opposition to that motion, defendant again contended that the motion should be denied as it was untimely and beyond the discovery cutoff. The court, however, granted the motion and ordered full compliance (although not a full production) within 30 days. Responses were then served, but defendant stated it could not comply as to one RFP because it was not in possession of responsive documents. Plaintiff brought another motion—this one for terminating sanctions—stating that defendant had still not complied. The court granted the motion in part and ordered the production of documents. Defendant contended that it then fully complied with the court’s order, but plaintiff nonetheless moved for terminating sanctions. After more procedure, the court granted the motion. In its discussion as to why the trial court’s orders were not proper, the Court of Appeal harkened back to the original motion to compel and noted that the responses to the RFP’s were not due until after the cutoff date, but declined to rule on that basis. Instead, it addressed the timeliness of the motion to compel rather than the timeliness of the underlying RFP. (In the case now at bar, it matters little. The cutoff would, if it applies, bar not only the most recent deposition notice, but also the motion to compel, both having been served long after the cutoff if one counts it from the original trial date.) The court rejected the equitable estoppel argument, which was in essence an assertion that the untimeliness was defendant’s fault because defendant had lulled plaintiff into a false sense of security. The court found that the original motion was untimely, and that whatever plaintiff might have done after the motion was originally set could not, and did not, cause the ultimate problem.

The Court of Appeal then turned to whether the trial court abused its discretion in not denying the motion to compel and for sanctions as untimely. The court agreed that the trial court did have some discretion, but it noted that the discretion was abused. The court noted that the statutes do allow the court to grant leave to reopen discovery, but “on motion of any party.” (Id. at p. 1586.) In deciding such a motion, the court must consider a number of factors including the diligence or lack thereof and the reasons that the motion was not heard earlier. There, although plaintiff eventually did move to reopen discovery, by the time it did, it was very late and plaintiff’s earlier conduct was essentially to operate as if there had been no discovery cutoff date. (Id., at pp. 1586-1587.) The court noted that plaintiff could have combined its motion to compel with a motion to reopen, but plaintiff did not do so. (Id., at p. 1587 fn. 26.) The court emphasized that the reopening of discovery must be on the motion of a party, suggesting that the court lacked the authority to do so sua sponte. (Id., at p. 1587.) The court noted that it was “disingenuous” for plaintiff to argue that the court properly exercised its discretion in “granting a motion [plaintiff] never made.” (Ibid.) Even so, the court concluded that the court still had discretion, but that discretion had to be exercised given the legal principles at work. In analyzing this, the court noted that the statute barred the court from exercising discretion to reopen except upon a successful motion and considering the issues that must be raised in such a motion. (Ibid.) There was no indication in the record that the factors had been considered because the motion had never been made. By granting the motion to compel without first having considered the various factors necessary to reopening discovery, the trial court abused its discretion. In considering the issues as it related there, the appellate court concluded that it was reasonably probable that had plaintiff brought the appropriate motion, it would have been denied.

Applying that analysis to the facts here, the court cannot grant the ex parte application. Although the application includes a number of points that would be pertinent to an analysis of the factors relevant to a motion to reopen, it is not a motion to reopen and it is hard for this court to do what the appellate court in Pelton-Shepherd eschewed: grant a motion never made and that the defense expressly states it is not making. Especially on an ex parte application, the court remains a bit bewildered by defendants’ failure to bring such a motion even after plaintiffs expressly stated that they viewed the discovery cutoffs as having come and gone. This perplexity is compounded by defendants’ own communications in this matter. On March 19, 2024, defense counsel wrote to plaintiffs’ counsel stating that the discovery cut off had come and gone and asking whether certain discovery plaintiffs had propounded was therefore withdrawn. Indeed, defense counsel reminded plaintiffs’ counsel that “vacating the trial date of April 2 did not reopen discovery.” In response, plaintiffs’ counsel confirmed that the trial extension did not change the discovery cut off, but stated that there was good cause to reopen discovery and expressed a hope that the parties could reach an agreement thereon. In response, defense counsel thanked plaintiffs’ counsel for confirming that discovery had closed. Impliedly, in the same email, defense counsel seemed to have suggested that there was no basis to reopen discovery even though a new motion for summary judgment was likely to be filed. Later the same day, plaintiffs’ counsel reiterated the legislative procedure (referring to the need to file a motion to reopen discovery), although counsel suggested (wrongly, in this court’s view) that the cut off might not apply to a motion to compel responses to written discovery where no responses had been served. On April 22, 2024, defense counsel again wrote plaintiffs’ counsel confirming that discovery had closed and that new discovery served by plaintiffs was therefore withdrawn. The court is aware that the foregoing correspondence related to fact discovery, not expert discovery. But although the deadlines are a bit different, the discovery cutoff statute applies to both fact and expert discovery. Defense counsel suggests that because expert discovery had not yet closed when the trial date was vacated, it remained open and was automatically tied to the new trial date. However, that is just not the law and having defense counsel trumpet that it is the law does not make it so; it only makes defense counsel loudly wrong. Not only that, but April was a long time ago. Defendants had plenty of time to meet and confer with plaintiffs about putting the expert depositions back on calendar and, if plaintiffs refused, to bring a motion to reopen discovery to so allow. Yet the defense did not do that.

Having said that, the court notes that, as discussed to some degree in the MSJ order and also as will be discussed at next week’s FSC, plaintiffs will be held to the four corners of their complaint, perhaps as expanded a bit by specific discovery responses already made. That means that plaintiffs’ expert will not be allowed to opine on theories not properly in the case—something that might well have been less of a problem for plaintiffs had they been willing to allow the deposition. If one lives by the sword, one dies by the sword. Second, this does, of course, work both ways. To the extent that plaintiffs have not yet taken defendants’ experts depositions, it will be too late to do that now.

In any event, the ex parte application is DENIED.