LARRY GREGORY VS WALGREENS

Tentative Rulings

Case Number: BC700309    Hearing Date: November 01, 2019    Dept: 2

Gregory v. Walgreens

Plaintiff’s Motion to Reopen Discovery, filed on 10/11/19, is GRANTED. Discovery is reopened. The discovery and motion cut-off dates are to be calculated based on the present trial date.

TIMELINESS

Defendant first argues that the Court should not consider the motion because Plaintiff did not give sufficient notice of motion. Defendant is correct that notice was insufficient; Plaintiff was required to file and serve the motion on 10/4/19 to allow for 16 court days of notice plus five calendar days for service by mail. Cal Code Civil Procedure § 1005(b). Plaintiff served the motion on 10/11/19.

However, a party may be deemed to have waived any irregularity in the notice by appearing at the hearing, opposing the motion, not asking for a continuance and not demonstrating any prejudice resulting from the shortened notice. Carlton v. Quint (2000) 77 Cal. App. 4th 690. 

The purpose of the notice period is to allow the responding party to file an opposition. If an opposition is filed and no prejudice is shown, then the purpose of the notice requirements is met. The defect is waived. Arambula v. Union Carbide Corp. (2005) 128 Cal. App. 4th 333, 342-343.

Defendant has not shown any prejudice resulting from the defective notice. Defendant filed an opposition, which the court has considered. Defendant has thus waived any objection on timeliness grounds, and the Court considers the motion on the merits.

MERITS

The court may, in its discretion, grant leave to reopen discovery after a new trial date has been set. Cal Code Civil Procedure § 2024.050(a).

Among the factors to be considered in granting relief are the diligence or lack of diligence in seeking discovery, the necessity for the discovery, the likelihood that permitting discovery will prevent the case from going to trial, and resulting prejudice to the opposing party, among other things. Cal Code Civ Procedure § 2024.050.

Plaintiff has demonstrated sufficient diligence in conducting discovery. Delays in the discovery process are largely of the Defendant’s making. Plaintiff served written discovery on 3/29/19, but Defendant did not serve verified responses until 8/12/19. Declaration of Alan Dollison, ¶ 5. Defendant did not respond to Request for Production of Documents until 8/28/19. Id.

The court’s file reflects that Plaintiff filed a Motion to Compel Defendant’s responses to Request for Production of Documents on 8/28/19. It was not unreasonable for Plaintiff to set depositions after discovery responses were received. Defendant’s 5-month delay in providing verified responses resulted in the delay in setting the necessary depositions.

Defendant states that on 8/12/19 Plaintiff served Notice of Taking Deposition of Defendant’s person most knowledgeable. Opposition, Declaration of Michael Miretsky, ¶ 12. The deposition was scheduled for 8/29/19, before discovery cutoff on 9/2/19. Motion, 5:20. However, Defendant failed to produce its witness, but offered dates in September, indicating a willingness to permit the depositions despite discovery cutoff, which undermines Defendant’s claim of prejudice. Opposition, Ex. C.

Plaintiff will suffer prejudice as he has not been able to complete discovery due to the Defendant’s delay in responding to Plaintiff’s discovery requests. The Court thus finds good cause to reopen discovery so that the necessary depositions may be taken. Discovery is reopened, and the discovery and motion cut-off dates are to be calculated based on the current trial date.

Moving party is ordered to give notice.