Judge Thomas D. Long, Case 21STCV08004 2023-02-09 Tentative Ruling

On June 16, 2021, Plaintiff Consumer Advocacy Group, Inc. filed a first amended complaint against Defendants Vitacost.com, Inc., Badia Spices, Inc. (“Badia”), and Amazon.com, Inc., alleging violation of Proposition 65.

On January 11, 2023, Plaintiff filed a motion to compel the deposition of Bafia’s person most knowledgeable (“PMK”). Plaintiff’s motion is not accompanied by the required separate statement for discovery motions that sets forth, among other things, “[a] statement of the factual and legal reasons for compelling further responses, answers, or production as to each matter in dispute.” (California Rules of Court, rule 3.1345.)

At the August 19, 2021 Case Management Conference, the Court set a January 17, 2023 trial date. On November 18, 2022, the Court granted in part Plaintiff’s ex parte application to continue trial and related deadlines. The Court continued the trial to April 17, 2023. The Court did not continue any discovery deadlines.

On December 14, 2022, the Court granted Plaintiff’s ex parte application to continue discovery deadlines, extending the discovery deadlines for 30 days to January 11, 2023, pursuant to the parties’ agreement. (See 12/13/2022 Ex Parte Application, Yeroushalmi Decl., Ex. B.) This included the fact discovery, expert discovery, and motion cut off deadlines.

Plaintiff filed this motion on January 11, 2023, noticing a February 9, 2023 hearing date. Pursuant to the agreed-upon discovery extension, all discovery motions must be heard by January 26, 2023. (See Code Civ. Proc., § 2024.020, subd. (a).) Accordingly, Plaintiff’s motion is untimely.

“[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. But the 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.” (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586 (Pelton-Shepherd).) The court’s authority to hear an untimely motion is governed by Code of Civil Procedure sections 2024.020 and 2024.050, which requires a successful motion to reopen discovery. (Id. at pp. 1587-1588.)

Here, like in Pelton-Shepherd, Plaintiff “simply ignored the close of discovery and sought an order compelling . . . as though there had been no discovery motion cutoff date.” (Pelton-Shepherd, supra, 165 Cal.App.4th at p. 1587.) Plaintiff’s February 2, 2023 Reply contends that it will be moving ex parte to continue discovery deadlines to run with the current April 17, 2023 trial date. (Reply at pp. 3-4.) Plaintiff also contends that it did not file a motion to continue discovery because the Court was unavailable to hear motions in January 2023. (Id. at p. 4.) But to date, Plaintiff has not attempted to file a motion or ex parte application, and the Court’s January 2023 hearing availability did not prevent the filing of future motions.

Regardless, the Court exercises its discretion to reopen discovery for the limited period to allow it to decide this motion, because the Court could not have heard a discovery motion by January 26, 2023. (See Pelton-Shepherd, supra, 165 Cal.App.4th at p. 1588-1590.)

If a party or an officer, director, managing agent, employee of a party, or person designated as the person most qualified to testify fails to appear for examination or produce documents without having served a valid objection, the demanding party may move to compel attendance, testimony, and production. (Code Civ. Proc., § 2025.450, subd. (a).)

On October 26, 2022, Plaintiff served a notice of deposition for Badia’s PMK, noticing the deposition for November 16, 2022. (Motion, Ex. A.) The notice identified 47 topics and 52 categories of documents to produce. On November 9, 2022, Badia served objections. (Motion, Ex. B.) On December 2, 2022, Plaintiff served another notice of deposition, noticing the deposition for December 14, 2022. (Motion, Ex. C.) On December 8, 2022, Badia again served objections. (Motion, Ex. D.)

Badia argues that there is nothing to compel because it served valid objections and did not raise the issue of the deposition again until January 10, 2023. (Opposition at pp. 5-6.)

Plaintiff asserts that it “never made an implied acceptance of Defendant’s objections to CAG’s deposition topics or requests.” (Reply at p. 3.) But Plaintiff does not dispute that it did not go forward with the deposition. (See Menger Decl. at ¶ 11.) Badia served timely objections, and thus its PMK did not improperly fail to appear. On January 6, 2023, Plaintiff’s counsel’s law clerk emailed Badia’s counsel about scheduling a meet-and-confer call about responses to other discovery. (Motion, Ex. E.) On January 9, 2023, the law clerk communicated that Plaintiff proposed a stipulation to continue discovery deadlines “as Parties have yet to resolve issues with written discovery and setting up deposition dates for depositions of PMKs.” (Motion, Ex. E.) On January 10, 2023—one day before the agreed-upon discovery deadline of January 11—Plaintiff’s counsel sent a letter to Badia’s counsel “once again following up on deposition dates for Badia’s PMQ.” (Motion, Ex. F.)

Because Badia timely served valid objections and Plaintiff did not further pursue the deposition until the discovery deadline, the motion to compel deposition is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are encouraged to appear remotely and should be prepared to comply with Dept. 48’s new requirement that those attending court in person wear a surgical or N95 or KN95 mask.

Hon. Thomas D. Long

Judge of the Superior Court