Judge: Steven A. Ellis, Case: 21STCV08397, Date: 2023-11-28 Tentative Ruling

Case Number: 21STCV08397    Hearing Date: November 28, 2023    Dept: 29

Tentative

The application or motion of Defendants is DENIED.

Background

Plaintiff James Michael Rios (“Plaintiff”) alleges (among other things) that he was injured on December 15, 2019, from an exposed nail in the hallway of the premises located on Catalina Street in Los Angeles.  On March 3, 2021, Plaintiff filed the Complaint asserting causes of action for negligence and premises liability against Defendants Brigid Sheridan, James Sheridan, The Sheridan Marital Trust, MGS Properties LLC, and Does 1 through 50.  On December 10, 2021, Plaintiff amended the Complaint to name MGS Properties as Doe 1.  On January 25, 2022, Plaintiff amended the Complaint to name M G S Properties Incorporated as Doe 2.

On January 25, 2022, Defendants Brigid Sheridan, James Sheridan, The Sheridan Marital Trust, and MGS Properties LLC filed their Answer to the Complaint.  On July 19, 2022, Defendant M G S Properties Incorporated filed its Answer, as well as a cross-complaint against Brigid Sheridan, James Sheridan, The Sheridan Marital Trust, and Roes 1 through 20.  On August 24, 2022, Brigid Sheridan, James Sheridan, and The Sheridan Marital Trust filed an answer to the cross-complaint.

Upon filing, trial was set for August 31, 2022.  On August 11, 2022, the Court continued trial to September 26, 2023.  On August 1, 2023, the Court continued trial again to December 1, 2023.

On November 15, 2023, Defendants Brigid Sheridan, James Sheridan, and The Sheridan Marital Trust (“Defendants”) filed an ex parte application, noticed for November 16, for an order compelling the deposition of Plaintiff and for monetary sanctions.  Plaintiff opposed the application.

On November 16, the Court denied the request for ex parte relief, noting that there was no reason given “as to why the motion was not filed earlier given the length of time that the trial was set and the length of time on non-compliance.”  In light of the factual disputes in the papers, the Court set the matter for a motion hearing on November 28.  The Court directed Defendants to re-file the request for relief “as a motion” as “the ex parte relief is denied.”

Defendants did not file their request for relief as a motion but did file a supplemental declaration on November 27, just one day before the scheduled hearing.  In the supplemental filing, Defendants’ counsel states that Plaintiff was deposed on November 21 but (according to Defendants) failed to answer questions about his drug use history.

Legal Standard

Except in relation to expert discovery, discovery motions must be heard on or before the fifteenth day before trial. (Code Civ. Proc., § 2024.020, subd. (a).)  The Court may grant a motion of a party to have motions heard closer to the trial date after due consideration of such matters as the necessity and the reasons for the discovery and the diligence or lack of diligence of the party seeking the discovery or the hearing on the discovery motion.  (Code Civ. Proc., § 2024.050.)

Discussion

Defendants’ motion for an order compelling Plaintiff’s deposition (or to compel Plaintiff to answer questions at his deposition) is untimely.  Based on the current trial date, the last day to have such a motion heard was on November 16.  Assuming the statutory minimum notice, the last day to file such a motion was on October 25. 

Defendants, however, did not file their ex parte application until November 15, with the hearing set for November 16.  On November 16, the Court denied the ex parte application.

Construing Defendants’ application broadly, perhaps generously, it may be that Defendants’ papers can be viewed as seeking an order under Code of Civil Procedure section 2024.050 for an order allowing their discovery motion to be heard closer to trial.  Even if that is the case, however, Defendants must still make a proper showing for the relief they request.  This they have not done.  Defendants have known about the trial date for months, trial was continued twice, and yet Defendants never filed a motion to compel Plaintiff’s deposition – until they filed an ex parte application on November 15, 2023, which the Court denied the next day.  If, as Defendants claim, Plaintiffs had refused for months to sit for his deposition, then Defendants should have filed a timely motion to compel sufficiently in advance of the motion cutoff.   They have offered no excuse for failing to do so.

Accordingly, Defendants’ motion is denied as untimely.

Conclusion

Defendants’ application or motion to compel is DENIED.

Moving party is ordered to give notice.