Tentative Rulings

Case Number: BC635516    Hearing Date: January 31, 2020    Dept: 37

HEARING DATE: January 31, 2020

CASE NUMBER: BC635516

CASE NAME: Brad Waisbren, an individual, et al. v. Heger Industrial, a business entity, form unknown, et al.

MOVING PARTY: Plaintiffs, Brad Waisbren and Marci Higer

RESPONDING PARTY: Defendants, Heger Industrial, Heger Realty Corporation, Thomas Holland and Paramount Industrial Park

TRIAL DATE: November 17, 2020

PROOF OF SERVICE: OK

MOTION: Motion to Reopen Discovery After New Trial Date

OPPOSITION: January 15, 2020 (Paramount Industrial Park), January 17, 2020 (Heger Industrial, Heger Realty and Thomas Holland)

REPLY: January 24, 2020

TENTATIVE: Plaintiffs’ Motion to Reopen Discovery is DENIED. Heger Defendants are to provide notice.

Background

This action arises out of a landlord-tenant dispute that has been summarized in numerous prior orders

By its case management order filed January 12, 2017, this case was set for trial was October 22, 2018, and thereafter discovery was cutoff pursuant to CCP section 2024.020.

Plaintiffs now move for an order reopening discovery pursuant to Code of Civil Procedure, section 2024.050. The Heger Defendants and Paramount Defendants both oppose the motion.

Discussion

1. Legal Standard

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 trial. (Code Civ. Proc., § 2024.020(a).) 

On motion of any party, the court may allow discovery proceedings to be completed or a discovery motion to be heard after the “cutoff” above.¿ Alternatively, it may reopen discovery after the trial has been continued to a new date.¿ (Code Civ. Proc., § 2024.050(a); see Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.) “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2024.050, subd. (a).) 

In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: 

(1) The necessity and the reasons for the discovery. 

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. 

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. 

(Code Civ. Proc., § 2024.050(b).)  The court shall impose sanctions pursuant to Chapter 7 (commencing with Section 2023.010) on the party who unsuccessfully makes or opposes this motion for leave, unless the party acted with substantial justification.¿ (Code Civ. Proc., § 2024.050(c).

1. Analysis

As indicated above the first date set for trial was October 22, 2018.

Accordingly, based on an October 22, 2018 trial date, the original discovery cut-off would have been September 22, 2018. Thereafter, the October 22, 2018 trial date was vacated, but no orders were issued vacating the discovery cutoff.

Upon a review of the docket, the court finds no evidence that the trial date was re-set until June, 2019, at which time it was set for November 17, 2020. Further, although Plaintiffs contend that the Court alleged instructed one or both of them to file a motion to reopen the trial date in “August 2019,” the Court really refused to entertain an oral motion to reopen discovery and indicated that a notice motion would be required for the court to consider the issue.

Plaintiffs also submit their own declarations in support of the instant motion. Plaintiff Brad Waisbren (“Waisbren”) attests that he was instructed by the Court to file a Motion to Reopen Discovery. (Waisbren Decl. ¶ 8.) Waisbren attests that he has exchanged “some discovery” with the Heger Defendants. (Waisbren Decl. ¶ 11.) He further attests that he would like to serve written discovery, taken depositions, and serve subpoenas on “all Defendants” as well as to “third parties.” (Waisbren Decl. ¶ 12.) Further, Weisbren contends that the added Doe Defendants “came too late for me to conduct proper discovery prior to the vacated trial schedule.” (Waisbren Decl. ¶ 23.) Plaintiff Marci Higer makes almost identical contentions in her declarations. Further, both plaintiffs contend that they spoke to counsel for defendants “on several occasions” and that counsel for defendants indicated that they would stipulate to reopen discovery. (see Marci Higer Decl. ¶ ¶ 28-29.)

The Paramount Defendants contend that Plaintiff’s motion should be denied because they have provided no explanation for why discovery should be re-opened and have shown no diligence in prosecuting this action. (Paramount Opposition, 4-6.)

Similarly, the Heger Defendants contend that Plaintiffs’ motion should be denied because they have failed to provide a sufficient explanation for why discovery should be re-opened. (Heger Opposition, 2-4.) The Heger Defendants contend that the Plaintiffs did not serve notices of deposition prior to expiration of the discovery cut-off date and did not serve any discovery on the newly added defendants until the expiration of the discovery cut-off date. (Opposition, 3.)

All the Doe defendants were added before or by May 2018. Thus, Plaintiffs had time to conduct discovery before the cutoff. Plaintiffs’ now argue that discovery should be re-opened because that would allegedly benefit both parties and that more discovery is necessary for Plaintiffs to prepare their case against the recently added Doe defendants. However, both the Paramount Defendants and Heger Defendants oppose reopening discovery, so they apparently believe that reopening discovery would not be beneficial to them. Further, Plaintiffs were the parties who decided to name new Doe defendants close to the original trial date and, as such, should have planned to obtain discovery from them in a timely fashion, if at all. Accordingly, none of Plaintiffs’ contentions provide sufficient grounds for the Court to reopen discovery.

The court agrees with Defendants and denies Plaintiffs’ motion. Plaintiffs’ motion to reopen discovery is DENIED.