Judge: Peter A. Hernandez, Case: 21PSCV00808, Date: 2024-01-17 Tentative Ruling
Case Number: 21PSCV00808 Hearing Date: January 17, 2024 Dept: K
Defendant Anakin Mark
Privitera’s Motion to Reopen Discovery is DENIED.
Background
Plaintiff Malissa Murillo (“Plaintiff”) alleges as follows:
Plaintiff worked
for Defendants Dr. Privitera’s Holistic Clinic (“Clinic”), Alternative Endeavors,
Inc. (“Endeavors”), Anakin Mark Privitera (“Privitera””) (collectively,
“Defendants”) as an office assistant at Clinic, first in the fall of 2019-early
2020 and again from August 2021-September 9, 2021. Privitera made lewd and
vulgar comments in Plaintiff’s presence on a repeated basis and made sexual
advances to her.
On October 5, 2021, Plaintiff filed a complaint, asserting causes of action against Defendants and Does 1-40 for:
1.
Discrimination
Based on Sexual Harassment in Violation of FEHA
2.
Failure
to Timely Pay Wages Owed
On December 23, 2021, Endeavors’ default was entered. On April 18, 2022, Clinic’s default was entered.
On April 24, 2023, the court granted Endeavors’ motion to set aside default and motion to quash service of summons.
The Final Status Conference is set for May 17, 2024. Trial is set for May 24, 2024.
Legal Standard
“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.” (Code Civ. Proc., § 2024.050, subd. (a).)
Under Code of Civil Procedure, section 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.
(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).)
“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc., § 2024.050, subd. (c).)
Discussion
Privitera moves the court, per Code of Civil Procedure § 2024.050, for an order reopening discovery in this case.
Privitera asserts that an order reopening discovery is necessary because his previous attorney of record initiated, but failed to complete, discovery and that he needs to conduct additional discovery to prepare for trial.
The motion is denied. Privitera reiterates that he needs to conduct additional discovery prior to the new trial date but fails to identify what discovery has already been conducted and when, why it was not conducted before, what additional discovery he seeks to conduct and how this additional discovery is necessary. Plaintiff points out that Privitera’s previous attorney of record propounded form and special interrogatories, requests for admissions, and document production requests on January 26, 2023 and that Plaintiff responded to the subject discovery in March 2023. (Byrnes Decl., ¶¶ 8-12, Exhs. 2-6).
Furthermore, this case was filed on October 5, 2021 and Privitera answered the complaint on November 8, 2021. Privitera has had more than two years to conduct discovery.
Lastly, the May 24, 2024 trial date is the third trial date set in this case. Reopening discovery at this juncture would likely result in a further continuance of the trial date, which the court is unwilling to countenance under the circumstances here.