Judge: Randy Rhodes, Case: 20CHCV00398, Date: 2023-04-17 Tentative Ruling
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Case Number: 20CHCV00398 Hearing Date: April 17, 2023 Dept: F51
Dept. F-51
Date: 4/17/23 TRIAL
DATE: 5/1/23
Case #20CHCV00398
MOTION TO REOPEN DISCOVERY
Motion Filed: 1/31/23
MOVING PARTY: Defendant Heidi Downen, in pro per
(“Defendant”)
RESPONDING PARTY: Plaintiff Marc H. Berry, in pro per
(“Plaintiff”)
NOTICE: OK
RELIEF REQUESTED: An order reopening discovery in
this matter.
TENTATIVE RULING: The motion is denied. The Court
imposes sanctions against Defendant in the amount of $100.00.¿
Defendant is reminded to review the 5/3/19 First
Amended General Order Re Mandatory Electronic Filing for Civil. When e-filing
documents, parties must comply with the “TECHNICAL REQUIREMENTS” which are set
forth at page 4, line 4 through page 5, line 12 of the Court’s 5/3/19 First
Amended General Order Re Mandatory Electronic Filing for Civil (particularly
bookmarking declarations and exhibits). (CRC 3.1110(f)(4).) Failure to comply
with these requirements in the future may result in papers being rejected,
matters being placed off calendar, matters being continued so documents can be
resubmitted in compliance with these requirements, documents not being
considered and/or the imposition of sanctions.
BACKGROUND
This
is an action by Plaintiff, who was Defendant’s former family law attorney,
suing for breach of contract regarding payment of fees. On 7/9/20, Plaintiff
filed his action against Defendant for Breach of Contract and Common Counts. On
10/23/20, Defendant filed her general denial.
On 7/9/21, the Court
scheduled a non-jury trial in this action to commence on 3/21/22. On 3/11/22,
the Court advanced and vacated the 3/21/22 trial date. On 4/25/22, Defendant
filed her answer to Plaintiff’s complaint.
On 5/13/22, the Court
scheduled a jury trial in the action to commence on 2/6/23. On 1/30/23, after
hearing Defendant’s ex parte application to continue trial and related
pre-trial dates, the court advanced the 2/6/23 trial date and continued it to
5/1/23.
On 1/31/23, Defendant filed
the instant motion to reopen discovery. On 3/20/23, Plaintiff filed his
opposition. No reply has been filed to date.
ANALYSIS
Code of Civil Procedure section 2024.020 provides
that “except as otherwise provided in this chapter, 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 the trial of the action. … Except as provided
in Section 2024.050, a continuance or postponement of the trial date does not
operate to reopen discovery proceedings.” (Code Civ. Proc. § 2024.020.)
“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.” (Code Civ. Proc. § 2025.050, subd. (a).)
Here, the original date for discovery to be
completed was 2/18/22, 30 days before the original 3/21/22 trial date. Beginning
on 1/26/23, Defendant served Plaintiff with various deposition notices and
discovery requests.
Meet and Confer
A motion to reopen discovery “shall be accompanied
by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc. § 2025.050, subd.
(a).) “A meet and confer declaration in support of a motion shall state facts
showing a reasonable and good faith attempt at an informal resolution of each
issue presented by the motion.” (Code Civ. Proc. § 2016.040.)
Here, Defendant’s former attorney declares that on
1/30/23, she telephoned and emailed Plaintiff to request a stipulation to
reopen discovery, but received no response. (Decl. of Shiloh Bentacourt, ¶ 9.) Therefore,
Defendant has satisfied the meet and confer requirement under Code of Civil
Procedure section 2025.050, subdivision (a).
Analysis
In ruling on a motion to reopen discovery, the Court
may take into consideration such relevant matters as the necessity and reasons
for the discovery, the diligence of lack of diligence of the party seeking
discovery, likelihood that permitting discovery will prevent the case from
going to trial on the date set, and any resulting prejudice to any party. (Code
Civ. Proc. § 2025.050, subd.
(b).)
In Johnson v. Alameda County Medical Center (2012)
205 Cal.App.4th 521, the Court of Appeal affirmed the trial court’s ruling
denying the plaintiff’s motion to reopen discovery after finding that the
plaintiff failed to conduct discovery for nearly two years, and did not move to
reopen discovery until 18 months after the discovery cutoff date. (205
Cal.App.4th at 531.) The Court of Appeal found that “the trial court did not
abuse its discretion in denying the motion to reopen discovery because
plaintiff had not ‘demonstrated good cause for the relief requested.’” (Ibid.)
Here, Defendant argues that the discovery she seeks
is necessary because “the documents, admissions, interrogatories, and
depositions requested will support Defendant’s affirmative defenses and/or lead
to the production and/or identification of relevant and discoverable evidence.”
(Def.’s Mot., 5:9–11.) With respect to diligence in seeking the discovery, Defendant
asserts that she was only recently able to afford an attorney and has acted
with diligence since then to serve discovery requests and responses. (Id.
at 5:15–23.)
In opposition, Plaintiff argues that Defendant has
not sufficiently shown necessity for her discovery, particularly where she has
no factual bases for her affirmative defenses. (Pl.’s Opp., 4:1–5.) Moreover,
as Plaintiff observes, Defendant “demonstrates no diligence and never explains
why she failed to launch timely discovery since the action was filed in 2020.
She does not attempt to show her discovery won't delay the trial or interfere
with Plaintiff’s preparation for trial, pending just weeks away.” (Id. at
2:12–15.)
Finally, Plaintiff notes that this Court has
previously heard and denied Defendant’s request to continue the discovery
cutoff dates. (1/30/23 Minute Order, p. 4.) To the extent that Defendant seeks
the Court’s reconsideration of its previous ruling, she has not properly shown
any “new or different facts, circumstances, or law” warranting reconsideration
under Code of Civil Procedure section 1008, subdivision (a), nor any “mistake,
inadvertence, surprise, or excusable neglect” warranting relief under Code of
Civil Procedure section 473, subdivision (b).
Based on the foregoing, the Court finds that here,
as in Johnson, Defendant has not demonstrated sufficient cause for an
order reopening discovery, particularly where she has not made any justification
for her failure to conduct discovery for over two years. Moreover, Defendant
has not shown how the reopening of discovery at this time, with trial set to
commence 14 days from the date of this hearing, would not prevent the action
from going to trial on 5/1/23. Accordingly, the motion is denied.
Sanctions
“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. § 2025.050, subd.
(c).)
In granting the instant motion, the Court finds it
reasonable to award Plaintiff sanctions against Defendant, a self-represented
litigant, in the amount of $100.00.
CONCLUSION
The motion is denied. The Court imposes sanctions against Defendant
in the amount of $100.00.¿