Judge Ronald F. Frank, Case 21TRCV00370 2022-12-21 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00370, Date: 2022-12-21 Tentative Ruling

Case Number: 21TRCV00370 Hearing Date: December 21, 2022 Dept: 8

Tentative Ruling

HEARING DATE: December 21, 2022¿

CASE NUMBER: 21TRCV00370

CASE NAME: MCool, Inc., dba Indiemodal Trucking v. Level Logistics, LLC, et al

MOVING PARTY: Defendant, Lever Logistics, LLC

RESPONDING PARTY: Plaintiff, MCool Inc., dba Indiemodal Trucking

TRIAL DATE: March 6, 2023

MOTION:¿ (1) Motion to Quash

Tentative Rulings: (1) DENY. The Court ordered the discovery cut-off date to be extended based on the continued trial date.

I. BACKGROUND¿

A. Factual¿

¿¿

On May 18, 2021, Plaintiff, MCool dba Indiemodal Trucking (“Plaintiff”) filed a complaint against Lever Logistics, LLC (“Defendant”), and DOES 1 through 10. On September 17, 2021, Plaintiff filed its First Amended Complaint (“FAC”) alleging causes of action for: (1) Breach of Contract; (2) Open Book Account; (3) Account Stated; and (4) Reasonable Value.

Defendants allege that Plaintiff originally served the subpoenas at issue on November 1, 2022 (Motion, Exhibit 4.) Defendants note that upon receipt of the subpoenas, Defendant’s counsel called Plaintiff’s counsel to object to the subpoenas on the basis that they had not agreed to open discovery to anything other than the deposition of Aksel Gargica and/or the deposition of PMK from Lever and Plaintiff’s expert witness. Defendant’s counsel asked Plaintiff’s counsel to withdraw the subpoenas and he agreed to do so. (Motion, Exhibit 5.) Plaintiff’s counsel requested a trial continuance in an email dated November 3, 2022, “in order to attempt to locate and depose Mr. Gargi,” and that he would prepare a joint stipulation to that effect. (Motion, Exhibit 6.)

However, Defendant argues that three weeks later, it received the same subpoenas to third parties but with different deposition dates. (Motion, Exhibit 8.) Defendant’s counsel asserts that it, again, contacted Plaintiff’s counsel, but that Plaintiff’s counsel refused to withdraw the depositions. (Motion, Exhibit 8.)

As such, Defendant filed this ex parte application to quash deposition subpoenas issued after the discovery cut-off and in non-compliance with the parties’ joint stipulation.

B. Procedural

On December 8, 2022, Defendant filed its ex parte application to quash deposition subpoenas issued after the discovery cut-off and in non-compliance with the parties’ joint stipulation. On December 8, 2022, Plaintiff filed an opposition. On December 14, 2022, Plaintiff filed a supplemental opposition. Defendant filed a Reply on December 19, 2022.

¿III. ANALYSIS ¿

A. Legal Standards

Ex parte relief is appropriate where the moving party seeks relief which cannot be addressed by a regularly noticed motion and will face prejudice if its application is denied. California Rules of Court Rule 3.1202 (c) allows this ex parte motion to be heard by this court. Further, when a party requires emergency relief, an ex parte application is the proper procedure to ask the court for the relief sought. (Turner v. Superior Court, (1977) 72 Cal.App.3d 80.)

"Pursuant to Code of Civil Procedure § 1005(b), the court may authorize a shorter time for written notice of, service of, and filing of motions, including supporting and opposing papers. California Rules of Court, Rule 3.1300(b), permits the court “on an application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the time specified in Code of Civil Procedure section 1005.” An ex parte application for an order shortening time may be granted if the applicant makes an “affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” (California Rules of Court, Rule 3.1202.)

B. Discussion

Code of Civil Procedure § 2024.020 provides: “(a) [e]xcept 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; (b) [e]xcept as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen proceedings.”

In Defendant’s moving papers, it notes that the parties originally agreed to a joint stipulation to continue trial and a [proposed] order filed on behalf of Plaintiff Mcool. (Motion, Exhibit 2.) Defendant asserts that this stipulation followed a November 4, 2022 telephone conversation between counsel regarding the scheduled deposition of a Lever dispatcher names Aksel Gargi in which Defendant’s counsel relayed that she had just learned that Mr. Acka had returned to his homeland due to the terminal illness of his wife. Defendant’s counsel asserted that she had suggested that Plaintiff depose the PMK from Lever, which it had not done so during the discovery period in this case which has been pending for over a year.

Defendant notes that on November 3, 2022, Counsel for Plaintiff, Jacob Bach, asked for an agreement to continue trial to give him time to locate Mr. Gargi. Defendant’s counsel agreed and Mr. Bach prepared the Joint Stipulation. (Motion, Exhibit 2.)

In opposition, Plaintiff asserts that Defendant’s ex parte application should be denied because it does not seek any form of emergency relief, but rather askes the Court to resolve Defendant’s failure and mischaracterization of the joint stipulation that was agreed to by parties to continue the trial and all related dates. Plaintiff notes that Defendant has not provided any explanation or substantive basis as to why the subpoena should be quashed, other than because the third-party depositions would take place after the original discovery cut-off date. Additionally, Plaintiff argues that with a trial date set for March 6, 2023, Defendant could have filed a regularly noticed motion to quash the subpoenas and provide the Court with a basis to quash the subpoena.

Plaintiff also asserts that this Court has already signed the order to continue the trial and all related dates. Further, Plaintiff contends that even if the Court were to believe that Defendant did not agree to stipulate to extend the discovery cutoff, the trial court has discretion in ruling on requests to extend discovery deadlines or continue trial dates.

The Court finds this matter to be controlled by the Stipulation and Order entered by the Court on November 9, 2022. The Stipulation requested, and the Court ordered, “that all related pre-trial dates are to be governed by the new trial date.” That means the usual rule per Code of Civil Procedure § 2024.020(b) that the discovery cut-off scheduling is governed by the original trial date has been pre-empted, superseded, and ordered to be extended until 30 days before the new March 6, 2023 trial date, and that the expert discovery cut-off is similar extended in accordance with the new trial date. The Motion to Quash is thus DENIED on the merits, not because of any procedural shortcoming.