Judge: Mark H. Epstein, Case: 22SMCV01343, Date: 2024-03-28 Tentative Ruling

Case Number: 22SMCV01343    Hearing Date: March 28, 2024    Dept: I

The court will GRANT the ex parte application’s alternative request for an OST.  Plaintiff seeks to re-open discovery, but if this is heard on regular notice it would not be heard until the court day before trial (on statutory notice and a week later on the reservation system).  That is a sufficient showing of exigent circumstances.  The motion will therefore be advanced to early next week.  Defendant may file a more thorough opposition no later than 8:00 am on Tuesday, April 2, 2024.  The hearing will be held on Wednesday April 3, 2024, at 9:00 am.

The court’s initial thoughts are that: (1) The parties ought to meet and confer today.  While it is clear that the defense will not agree to a general re-opening of discovery, it could be that if plaintiff were more specific and proposed a very limited re-opening, the defense would agree.  (2) The court understands why it is that plaintiff did not complete discovery.  The parties thought they had essentially settled the case so they put “pencils down” to avoid unnecessary expense.  When the settlement fell apart, the cut off had come and gone.  That is not unreasonable for plaintiff.  (3) The most the court would ever consider agreeing to allow would be for discovery already on the horizon when the informal stay began.  In other words, written discovery already propounded in terms of everything but depositions.  As for depositions, the court would almost certainly allow defendant’s deposition assuming plaintiff has not taken it.  Surely defendant knew that had the parties not (almost) settled, defendant’s deposition would be taken.  That assumes a deposition, but not a deposition with production of documents.  (4) The court is not convinced that discovery should be re-opened for the alleged new violations.  Plaintiff will need to get them from the public file (if they are formal citations, they ought to be available that way), and plaintiff can bring in testimony about communications between the parties without formal discovery.

If discovery is re-opened, the amount of time defendant will have to comply will be measured in days and likely not weeks given the trial’s proximity.

The court STRONGLY urges the parties to get their settlement back on track.  The court also reminds the parties that it will hold them to the court’s FSC requirements and they can expect sanctions if they do not fully comply.