Judge Thomas D. Long, Case 21STCV08004 2023-03-23 Tentative Ruling

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

On January 27, 2023, Plaintiff filed a motion to compel further responses to Form Interrogatories, Set Two from Vitacost. Plaintiff’s request for judicial notice of the Final Statement of Reasons Section 12903, Notices of Violation, Title 22, Division 2, California Code of Regulations is denied as irrelevant.

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. (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 27, 2023, noticing a March 23, 2023 hearing date. Pursuant to the 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.

Plaintiff argues that its motion is timely because it served its second set of discovery on Vitacost on November 2, 2022, Vitacost electronically provided responses on December 6, 2023, and Plaintiff is entitled to file a motion to compel 45 days after receiving responses. (Reply at pp. 2-3; see Code Civ. Proc., § 2030.300, subd. (c).) According to Plaintiff, its deadline to file a motion to compel was therefore January 24, 2023, and on January 24, 2023, Plaintiff booked an informal discovery conference to toll the deadline before filing this motion on January 25, 2023. (Reply at p. 3.) However, this motion was actually filed on the afternoon of January 27, 2023—well beyond the deadline to file a discovery motion.

Additionally, Code of Civil Procedure section 2030.300, subdivision (c) provides only that a party will waive the right to compel a further response unless notice of a motion to compel is given within 45 days; it does not provide that party with the right to file such a motion. Instead, “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.” (Code Civ. Proc., § 2024.020, subd. (a).)

“[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.) 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.)

Even if the Court were to construe this motion as, in part, a request to reopen discovery, Plaintiff has not shown entitlement to this relief.

According to Vitacost, on October 21, 2023, it served responses to Plaintiff’s Form Interrogatories-General, Set One, which included Form Rogs 1.1, 15,1 and 17.1. (Michals Decl. ¶ 9.) Plaintiff did not attempt to meet and confer about these responses. (Mcihals Decl. ¶ 10.) Form Rogs 1.1, 15,1 and 17.1 were propounded again with Set Two, and Plaintiff’s December 6, 2022 responses to Set Two included objections that the Form Rogs were already asked and answered and were improperly duplicative, with references to the October 21, 2022 responses. (Yeroushalmi Decl. ¶ 3 & Ex. B.) Plaintiff has not set forth any showing as to the necessity or reasons for this duplicative discovery. (See Code. Civ. Proc., § 2024.050, subd. (b)(1).)

Vitacost filed an answer to the FAC on July 26, 2021, and has been participating in this action since then. Plaintiff provides no explanation of its delay in propounding the discovery on Vitacost. (See Code. Civ. Proc., § 2024.050, subd. (b)(2).) Also, Plaintiff was aware of its discovery and Vitacost’s purportedly deficient responses when Plaintiff filed its ex parte application on December 13, 2023. (See 12/13/2022 Ex Parte Application at p. 4 & Yeroushalmi Decl. ¶ 14.) Accordingly, Plaintiff should have taken into account its potential motions to compel when seeking this ex parte relief.

Since the last trial continuance, the Court has already denied another ex parte application to reopen discovery and hear discovery motions after the deadline. (See 02/09/2023 Order.) The final status conference is scheduled for April 3, 2023, and trial is scheduled for April 17, 2023. Permitting further discovery will prevent the case from going forward and will interfere with the trial calendar. (See Code. Civ. Proc., § 2024.050, subds. (b)(3)-(4).)

The Motion to Compel Further Discovery Responses to Form Interrogatories, Set Two 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