Judge: Theodore R. Howard, Case: 21-1227858, Date: 2022-11-10 Tentative Ruling

Plaintiff Jose Cervantes’ Motion to Compel Nissan North America, Inc.(NNA) to provide further responses to Requests for Production of Documents, Set One, and request for sanctions, is DENIED.

CCP §2031.310(c) requires any motion to compel further response to be filed “within 45 days of the response, or any supplemental verified response, or on or before any specific later due date to which the demanding party and the responding party have agreed to in writing.”

On April 1, 2022, NNA served verified responses to plaintiff’s requests for production of documents, set one. (Exhs. 2 & 3 to Motion).  On May 5, 2022, plaintiff’s counsel sought and obtained from defense counsel “an extension to and including 45 days after the date of your letter response or further discovery responses, whichever is later.”  (Exh. 6 to Motion).  On June 28, 2022, defense counsel sent a lengthy letter response to plaintiff’s meet and confer addressing each of the discovery requests that are now the subject of this motion. (Exh. 5 to Motion)  the motion was then filed 9/2/22, which makes the motion untimely. 

Plaintiff argues in the Reply that the agreement was that the deadline was extended until “45 days after a meet-and-confer response or any supplemental production, whichever is later.”  (Reply at 4:9; emphasis added.)  This is not accurate.  Since plaintiff’s counsel was the drafter of the May 5, 2022 agreement which said the extension was tied to the date of the “letter response or further discovery responses” he cannot now claim that such was ambiguous or otherwise seek to change the agreement.

CCP §2031.310(b)(1) states as follows:  “(b) A motion under subdivision (a) shall comply with each of the following: (1) The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”  The plaintiff’s motion fails to set forth specific facts showing good cause justifying the discovery as required by CCP §2031.310(b)(1).  The Legislature specifically required good cause to be set forth in the motion.  Plaintiff submits new argument and evidence in the reply in an attempt to do what was required to be done in the motion. The Court declines to consider all new points, arguments, and evidence presented for the first time on reply.  (See, e.g., Carbajal v. CWPSC, Inc. (2016) 245 Cal.App.4th 227, 241 -“general rule of motion practice . . . is that new evidence is not permitted with reply papers”; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (same); Tyler v. Children’s Home Society (1994) 29 Cal.App.4th 511, 526 n.8 - “it is unfair to raise new arguments for the first time in a reply brief; we therefore need not consider the contention”.  Balboa Ins. Co. v. Aguirre, (1983) 149 Cal.App.3d 1002 - a theory may not be raised for the first time in a reply brief.)

Court orders moving party to give notice.