Superior Court of California¿ 

County of Los Angeles¿ 

Department 78¿ 

¿ 

 

I. BACKGROUND 

Plaintiff Frances Atkins (“Plaintiff”) filed this FEHA and Labor Code violation action against defendants St. Cecilias School, et al. alleging that, after having been employed by defendants between 1978 and 2018 and her good performance, defendants terminated her in 2018 to replace her with a significantly younger person. 

On April 29, 2021, the Court granted defendant St. Cecilia Catholic School’s motion for summary judgment (“MSJ”).  

On August 8, 2023, the Court of Appeal issued a remittitur reversing the Court’s order granting summary judgment. 

On May 22, 2024, Plaintiff now moves to reopen discovery for the limited purpose of opposing the “ministerial exception” affirmative defense, and to oppose assertion that it is exempt from FEHA Gov’t Code §12926(d) as a non-profit religious organization. Plaintiff also seeks attorneys’ fees and costs pursuant to CCP §473 on the grounds that Defendants raised an affirmative defense for the first time on MSJ, and a different affirmative defense on the recent motion for judgment on the pleadings. 

On July 18, 2024, defendants St. Cecilia Catholic School (sued as St. Cecelias School) and Roman Catholic Archbishop of Los Angeles (sued as The Roman Catholic Archbishop of Los Angeles dba St. Cecilias School) (collectively, “Defendants”) oppose the motion. Defendant argues that Plaintiff neglected to promptly seek an extension of the discovery deadline or provide support requiring discovery. Nonetheless, Defendants agree to reopen discovery, but opposes the request that it bear costs. Defendants request that should discovery be reopened, that Defendants be permitted to amend their Answer to include two affirmative defenses. 

On July 24, 2024, Plaintiff filed a reply, reasserting that discovery should be reopened for the limited purpose of discovery as to the two affirmative defenses, and that Defendants should pay costs associated with reopening discovery. 

 

II. LEGAL STANDARD 

Except as otherwise provided, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.  (Code Civ. Proc., § 2024.020, subd. (a).) 

CCP § 2024.050 states:¿ 

(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.¿ 

¿(b) 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.¿¿ 

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.¿ 

 

III. DISCUSSION 

The parties appear to agree to reopen discovery for the limited purpose of discovery pertaining to (1) the “ministerial exception”, and (2) whether Defendants are exempt from FEHA Gov’t Code §12926(d) as a non-profit religious organization. Trial is currently set for December 30, 2024. There is no apparent prejudice to extending the discovery cut-off deadline to track with the current trial date. This would allow close to four months from the date of this hearing to the discovery cut-off date to complete any outstanding discovery prior to trial. Additionally, Plaintiff does not oppose the request that Defendants be allowed to amend their Answer to include two affirmative defenses. Nothing prevents Defendants from seeking leave to file an amended Answer. 

The only matter at issue appears to be costs. Plaintiff seeks both attorney fees and costs in reliance upon CCP §473 and CCP §1033.5. CCP §1033.5 is not applicable because Plaintiff is not a prevailing party pursuant to CCP §1032. As for CCP §473(a)(2), this section allows the court to impose, as a condition to an amendment to a pleading, to require the adverse party to pay “any costs” that is deemed just. There is nothing in CCP §473 that allows for the recovery of attorney fees. In terms of costs, it is ambiguous as to whom Plaintiff needs to depose to address the affirmative defenses, and no estimated deposition costs were provided. The Court will address costs at the hearing. 

 

IV. CONCLUSION 

Based on the foregoing, Plaintiff’s motion to reopen discovery is GRANTED for the limited purpose of allowing Plaintiff to conduct depositions on the issue of (1) the “ministerial exception”, and (2) whether Defendants are exempt from FEHA Gov’t Code §12926(d) as a non-profit religious organization. Discovery and motions related to this specific discovery is re-opened to track with the current trial date of December 30, 2024. All other deadlines remain the same. 

Plaintiff’s request for costs will be discussed at the hearing.  

 

Moving Party is ordered to give notice. 

 

DATED: July 30, 2024 

__________________________ 

Hon. Michelle C. Kim 

Judge of the Superior Court 

 

PLEASE TAKE NOTICE: 

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement. 

• If a party intends to submit on this tentative ruling, the party must send an email to the court at SMCDEPT78@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.