Judge: Richard Y. Lee, Case: 30-2019-01109204, Date: 2022-10-20 Tentative Ruling
Plaintiff, Sheri Moody (“Plaintiff”) moves for an order:
1. Compelling a further response in oral deposition of Defendant, Southern California Gas Company’s party affiliated employee/agent, Alex Hughes;
2. Compelling the deposition of Defendant, Southern California Gas Company’s party affiliated employee/agent, Alex Hughes to continue forward without disruption and termination;
3. Compelling the oral depositions of newly identified party affiliated employee/agents of Defendant, Southern California Gas Company: Alex Taylor, Rick Hartley, “Anthony,” and Southern California Gas Company’s Persons Most Qualified re: direction, approval, oversight, decision making, and knowledge to subsequently install the protective yellow “T-Bars” at the fall location on both sides of the dangerous low-lying gas pipe riser and trip hazard, on which plaintiff tripped and fell and to reset the discovery schedule as necessary; and
4. Awarding discovery monetary sanctions in Plaintiff and her counsel’s favor, in the form of attorney’s fees, costs and expenses of $6,510 against Defendant, Southern California Gas Company; their counsel at the oral deposition, Marlin Howes, Esq.; and Southern California Gas Company’s Office of the General Counsel.
Initially, the Court notes that while Plaintiff filed one Notice of Motion and Memorandum of Points and Authorities, the instant motion actually consists of two (2) motions. In addition, Plaintiff is admonished that failure to properly file separate motions and pay separate filing fees will result in the future in at least one of the motions be taken off-calendar.
Plaintiff contends that the deposition of Alex Hughes was wrongfully and improperly terminated by So Cal Gas’s counsel, Marlin Howes, Esq. on July 15, 2022, at 3:30 p.m., based on the abusiveness of the question, and without the assertion of proper objections; that Mr. Howes improperly sought to narrow the scope of Plaintiff counsel’s questions; that Mr. Howes did not promptly move for a protective order against Plaintiff’s counsel for the alleged abusive questions; that Plaintiff is entitled to ask questions on hypotheticals, opinion, and hearsay related to his oversight of the investigation at the direction and inquiry of CPUC/Gordon Kuo, PE; and that Plaintiff is not required to give a list of question to So Cal Gas’s counsel in order to continue the deposition. Plaintiff contends that there are more questions for Mr. Hughes such that the deposition should be ordered; that Plaintiff still has nearly 2.5 hours of deposition time, and that the continued deposition should be at the expense of So Cal Gas for the court reporter, and transcript.
Plaintiff additionally requests that the Court compel the depositions of So Cal Gas employees identified by Mr. Hughes at deposition, including Alex Taylor, Rick Hartley, “Anthony,” and So Cal Gas’s PMQ re: So Cal Gas’s direction, approval, oversight, decision making, and knowledge to install the yellow T-bars at the fall location and any other safety warnings/measures and considerations of such, that were physically out at the gas pipe riser location during the investigation in February-May 2019, and assisted in providing Mr. Hughes information that he relied upon to form his safety investigation opinions. Plaintiff contends that Plaintiff is entitled to discovery of subsequent remedial measures consisting of the two yellow T-bars that were installed by So Cal Gas in or about April 2019, toward the end of the investigation; that while subsequent remedial measures are not admissible to provide negligence at trial under Evidence Code section 1151, they are discoverable; that Plaintiff met and conferred via telephone on August 31, 2022, and requested these 3 individuals and So Cal Gas’s PMQ, but that Mr. Howes rejected any right to depose these individuals; and that thus, drafting deposition notices of the 3 So Cal Gas Employees and PMQ would be “futile” and a motion to compel is the only other remedy. Finally, Plaintiff requests monetary sanctions in the amount of $6,510 against so Cal Gas; their counsel at the oral deposition, Marlin Howes, Esq.; and So Cal Gas’s Office of the General Counsel.
Defendant, Southern California Gas Company (“SoCalGas”) has filed two oppositions: one as to a further response to a deposition question and the continuation of the deposition of Alex Hughes; and the other as to the depositions of newly identified witnesses.
As it relates to the deposition of Alex Hughes, SoCalGas argues that the Court continued the trial of this matter to January 17, 2023, but did not continue discovery and motion cut-off, leaving fact discovery cut-off as of May 30, 2022; that the parties agreed to file a stipulation and order extending fact discovery by Plaintiff to SoCalGas to July 31, 2022 which the Court signed on June 8, 2022; that Alex Hughes possesses no relevant, admissible evidence regarding this case; that activities of both the Safety Enforcement Division of the CPUC and SoCalGas in response to Plaintiff’s informal complaint are inadmissible under Public Utilities Code section 315; that the Court has already sustained an objection to introduction of evidence of the subsequently-installed T-bars as part of the rulings on ICON’s Motion for Summary Judgment as they are subsequent remedial action and SoCalGas admitted that it installed, owns, controls, and maintains the subject riser and attendant bright yellow bollards; and that Mr. Hughes’ involvement was after the incident and in connection with the CPUC investigation, which consists of authoring three inadmissible emails. SoCalGas asserts that Plaintiff’s counsel’s hypothetical question is irrelevant and inadmissible, and that Plaintiff’s counsel does not claim that the question has any value at all, but simply argues that he can ask anything he wants. Additionally, SoCalGas argues that Plaintiff did not properly meet and confer on the subject of this motion; that the motion is deceptive, unnecessary, and taken in bad faith, and that SoCalGas has incurred and reasonably expects to incur fees in the amount of $2,500 in opposing this motion and attending the hearing, as set forth in the declaration of Marlin E. Howes.
As to depositions for newly discovered individuals and SoCalGas’s PMQ, SoCalGas provides that Plaintiff inappropriately merged this request with the motion to compel further testimony of Alex Hughes, and that Plaintiff’s request is not a motion to compel, but in actuality, a motion to re-open discovery. SoCalGas argues that Plaintiff has never served deposition notices on the three witnesses she seeks to depose, that discovery as to SoCalGas was cut-off on July 31, 2022, at the request of Plaintiff; and that Plaintiff did not request/demand further depositions until August 13, 2022, 13 days after discovery was closed. As to SoCalGas’s PMQ deposition notice, SoCalGas asserted that it objected to each and every category and served said objections on June 29, 2022; that as a result of a meet and confer, SoCalGas agreed to produce three PMQs and offered available dates for each agreed category witness, but that Plaintiff only took the deposition of one. SoCalGas argues that Plaintiff now seeks to do the discovery she failed to timely do, but cites to no authority to support her request and fails to provide any good cause for her request to re-open discovery. SoCalGas asserts that the Court already sustained an objection to evidence of the subsequent remedial measures as inadmissible under Evidence Code section 1151. Finally, SoCalGas requests $750, as set forth in the declaration of Marlin E. Howes, to oppose this motion and attend the hearing, which it contends has been incurred solely because of Plaintiff’s counsel’s bad faith litigation and discovery tactics.
Discovery Motion Cut-Off
In both of its oppositions, SoCalGas argues that discovery is cut-off, and that as to the depositions for newly discovered individuals, this is actually a motion to re-open discovery.
Except as otherwise provided, any party is 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. (Code Civ. Proc., § 2024.020(a).) Discovery “is considered completed on the day a response is due or on the day a deposition begins.” (Code Civ. Proc. § 2024.010.)
“Subdivision (a) of section 2024.020 specifies that ‘[e]xcept as provided in this chapter, any party shall be entitled as a matter of right ... to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.’ (Italics added.) Thus, if a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. By negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard.” (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586–1586.)
Code of Civil Procedure section 2024.020(b) provides that a continuance of the trial date does not operate to reopen discovery proceedings except as provided in Code of Civil Procedure section 2024.050.
Here, initially, the Court notes that jury trial was initially scheduled for November 8, 2021. (December 17, 2020 Minute Order; ROA 45.) Thereafter, it was continued to December 6, 2021, with all statutory discovery cut-off and motion cut-off dates extended to the new trial date. (April 29, 2021 Minute Order; ROA 50.) On October 19, 2021, the Court continued the jury trial date to June 27, 2022, along with all related discovery and motion cut-off dates and expert discovery, after considering the Joint Stipulation of the parties so continue said dates. (October 19, 2021 Minute Order; ROA 75.) On April 26, 2022 the Court granted another continuance of jury trial to January 17, 2023; however, the Court stated, “Motion and discovery cut-off dates are NOT continued.” (April 26, 2022 MO, ROA 119.)
SoCalGas provides that per stipulation of the parties and order of the Court signed on June 8, 2022, Plaintiff then had until July 31, 2022 to depose SoCalGas fact witnesses. (Declaration of Marlin E. Howes (“Howes Decl.”), ¶ 3; Ex. A; ROA 236, 237.) Said Order states, in pertinent part: “The percipient fact deposition discovery cut off is also extended from May 27, 2022, to July 31, 2022, for the purpose of permitting Plaintiff to proceed with depositions of Cross-Defendant SOUTHERN CALIFORNIA GAS COMPANY witnesses noticed in May, 2022 (The Court notes that SOUTHERN CALIFORNIA GAS COMPANY objects to Plaintiff’s deposition notices and reserves the right to contest the notices and to refrain from presenting witnesses as noticed, or to be re-noticed by Plaintiff);” (Ex. A to Howes Decl., Order dated June 8, 2022, 2:18-24.)
The deposition of Alex Hughes occurred on July 15, 2022. (Declaration of Evan A. Blair (“Blair Decl.”), ¶ 20.)
It was not until August 12, 2022, that Plaintiff’s counsel sent any correspondence concerning the depositions of SoCalGas employees and seeking to complete Mr. Hughes’ deposition; and to set the deposition of three other SoCalGas employees, Alex Taylor, Rick Hartley, and “Anthony” (last name unknown to Mr. Hughes) who were identified during Mr. Hughes deposition as being involved in some way with the CPUC investigation; as well as the deposition of the PMQ of SoCalGas on various topics. (Blair Decl., ¶ 29; Ex. 8 thereto.; Howes Decl., ¶ 5, Ex. C thereto, ROA 236.)
On August 19, 2022, SoCalGas’s counsel sent a letter to Plaintiff’s counsel noting that discovery had been closed for three weeks. (Blair Decl., ¶ 30; Ex. 9 thereto; Howes Decl., ¶ 6, Ex. D thereto, ROA 236; Ex. M to Howes Decl., ROA 237.)
On August 31, 2022, all counsel participated in a telephone call. (Blair Decl., ¶ 31; Howes Decl., ¶ 7; ROA 236.) Plaintiff’s counsel provides that this was a telephonic meet and confer “on all issues raised by plaintiff’s August 12, 2022 email.” (Blair Decl., ¶ 31.) However, SoCalGas’s counsel provides that during that call, counsel asked Plaintiff’s counsel about the applicability of the discovery cut-off, but Plaintiff’s counsel did not provide any rational reason. (Howes Decl., ¶ 7; ROA 236.)
The foregoing indicates that while “percipient fact deposition discovery” was cut-off on July 31, 2022 based on a stipulation and the Court’s Order signed on June 8, 2022, the motion cut-off dates was not continued pursuant to the Court’s April 26, 2022 Minute Order. As the instant discovery motions were filed on September 12, 2022, to be heard on October 20, 2022, they were filed and set to be heard well after the discovery motion cut-off date. Even if July 31, 2022 is deemed the discovery motion cut-off date, the instant motions were filed and set to be heard after the discovery cut-off deadline and are untimely.
The court may not hear and grant a belated discovery motion after the discovery cut-off without first granting a motion to reopen discovery, i.e., first deciding whether discovery should be reopened for that purpose. (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal. App. 4th 1568, 1586–1588.) “[T]he fact that a party does not have a right to have a discovery motion heard after the discovery motion cutoff date does not mean the court has no power to hear it, or that the court errs in hearing it. Indeed, subdivision (a) of section 2024.050 specifically allows a discovery motion to be heard after the discovery motion cutoff date . . . .” (Id. at p. 1586.)
Code of Civil Procedure section 2024.050(a) provides that “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” on motion of any party. The motion must be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc. § 2024.050(a).)
Code of Civil Procedure section 2024.050(b) further provides that “[i]n 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.”
Plaintiff makes several requests in the notice of motion and cites to numerous statutes, but does not request that the Court grant leave to complete the deposition of Mr. Hughes, or take the depositions of the three (3) SoCalGas employees or the PMQ of SoCalGas, or to have the instant motions heard, or to reopen discovery, or cite to authority for the same under Code of Civil Procedure section 2024.050. Any such motion must be made on motion of a party.
There also does not appear to have been reasonable and good faith efforts to discuss any such request by Plaintiff or the discovery cut-off issue.
Nevertheless, even if the Court overlooked the lack of meet and confer, and even if the Court were to construe the instant motions as requesting leave to compel a further response from Mr. Hughes and to complete the deposition of Mr. Hughes, as well as to conduct other depositions of newly identified individuals and SoCalGas’s PMQ beyond the discovery and motion cut-off date, Plaintiff does not demonstrate that the further deposition of Mr. Hughes to ask questions on hypotheticals, opinion, and hearsay related to the investigation conducted by the CPUC on Plaintiff’s complaint is necessary, or the reasons for such discovery. Nor does Plaintiff demonstrate that the depositions of SoCalGas employees, Alex Taylor, Rick Hartley, and “Anthony” (last name unknown to Mr. Hughes), and the PMQ of SoCalGas on the topics, i.e., So Cal Gas’s direction, approval, oversight, decision making, and knowledge to install the yellow T-bars at the fall location and any other safety warnings/measures and considerations of such are necessary to the prosecution of this case.
Additionally, Plaintiff fails to show that she acted diligently. Mr. Hughes’ deposition took place on July 15, 2022, but Plaintiff did not contact SoCalGas’s counsel until August 12, 2022 about the depositions at issue, after the discovery cut-off deadline of July 31, 2022, a date to which the parties stipulated. Plaintiff provides no explanation for the delay or lack of diligence. The Court notes that although Plaintiff was aware of the discovery cut-off issue prior to the filing of the instant motions, Plaintiff’s moving papers do not raise, let alone address, the issue of the discovery and motion cut-off deadlines. Moreover, Plaintiff’s papers do not address any other factor identified by Code of Civil Procedure section 2024.050(b).
Based on the foregoing, the Court DENIES the motions to compel further responses and the continued deposition of Mr. Hughes, and to compel depositions of three (3) other SoCalGas employees and the PMQ of SoCalGas on the topics identified in the moving papers. To the extent that the instant motions are construed as a motion for leave to complete discovery or reopen discovery, such motion is also DENIED. In turn, the Court DENIES Plaintiff’s request for monetary sanctions in the amount of $6,510.
SoCalGas’s Requests for Monetary Sanctions
SoCalGas requests $2,500 for opposing the motion to compel and appearing at the hearing as it relates to the deposition of Alex Hughes for the misuse of the discovery process in making a motion to compel unsuccessfully and without substantial justification pursuant to Code of Civil Procedure section 2023.010(h) and section 2023.030(a).
On that same ground, SoCalGas requests $750 for opposing the motion to compel as it relates to the depositions of three newly identified witnesses and SoCalGas’s PMQ.
The court may impose a monetary sanction ordering that one engaging in conduct that is a misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, included attorney’s fees incurred as a result of that conduct. (Code Civ. Proc. § 2023.030(a).) The court shall impose a monetary sanction 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. (Ibid.) Misuses of the discovery process include “[m]aking or opposing, unsuccessfully and without substantial justification, a motion to compel discovery.” (Code Civ. Proc. § 2023.010(h).)
As to the motion to compel further responses and continue the deposition of Alex Hughes, SoCalGas’s counsel estimates that he has spent and will spend ten (10) hours opposing the motion and attending the hearing, at $250/hour for a total of $2,500 in legal fees. (Declaration of Marlin E. Howes, ¶ 21; ROA 237.)
As to the motion to compel the depositions of three additional SoCalGas employees and SoCalGas’s PMQ, SoCalGas’s counsel estimates that he has spent and will spend three (3) hours opposing the motion and attending the hearing, at $250/hour for a total of $750 in legal fees. (Declaration of Marlin E. Howes, ¶ 8; ROA 236.)
The Court finds both amounts reasonable. Thus, the Court AWARDS SoCalGas monetary sanctions in the amount of $2,500 against Plaintiff, payable within 30 days of the notice of ruling, for the motion to compel relating to Alex Hughes.
The Court AWARDS SoCalGas monetary sanctions in the amount of $750 against Plaintiff, payable within 30 days of the notice of ruling, for the purported motion to compel depositions of other SoCalGas employees and SoCalGas PMQ.
SoCalGas’s Objections to the Declaration of Evan Blair
The Court SUSTAINS Objection Nos. 1 through 6, 8, 9, 11, 12, 15-20, 23, 25-29, 31, 33, 34, 37, 38, 40-43, 46-48.
The Court OVERRULES Objection Nos. 7, 13, 14, 21, 22, 24, 30, 32, 35, 36, 39, 44, 45.
The Court OVERRULES Objection No. 10 as to the statements made in the declaration. However, the Court SUSTAINS the Objection No. 10 as to Exhibit 12.
SoCalGas to give notice.