Case Number: EC058443 Hearing Date: April 15, 2014 Dept: 93

Plaintiff Hermik Allahverdian’s five discovery motions are DENIED. Defendant Glendale’s request for monetary sanctions is GRANTED, in part.
Discussion
In opposition to plaintiff’s discovery motions, defendant City of Glendale argues they should be denied because they were untimely filed after the discovery motion cut-off date (Opposition, p. 6), pursuant to CCP § 2024.020:
(a) Except as otherwise provided in this chapter, 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 the trial of the action.

(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.

Here, the date initially set for trial was December 2, 2013. Therefore, all discovery motions in this case were to be heard on or before November 18, 2013. However, plaintiff filed and served her instant discovery motions on November 27, 2013, after the cut-off for discovery motions to be heard. “[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.” Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586. Therefore, plaintiff’s motions are untimely. In fact, a court that hears a “motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances . . . [will have] ‘transgresse[d] the confines of the applicable principles of law’ [citation omitted] and thereby abused its discretion.” Id. at p. 1588.
On November 26, 2013, plaintiff, via an ex parte application, sought to re-open discovery and/or continue the pre-trial discovery and motion cut-off dates. After reviewing the ex parte application and defendant’s opposition, the court denied the request to reopen discovery, ruling as follows:

There is no showing of irreparable harm or immediate danger that would or could result in the absence of such an order as required by CRC Rule 3.1202(c). Given that the trial date if [sic] May 23, 2014, plaintiff has ample time to bring whatever noticed motions it deems appropriate given the agreements contained in the stipulation.

This order made clear that plaintiff had ample time to file a regularly noticed motion asking for permission to re-open discovery or continue the discovery and motion cut-off dates. In other words, the order made clear that there was no basis articulated for the court to her this motion on an ex parte basis. Plaintiff seems to be reading this otherwise straightforward order to mean that plaintiff could file motions to compel further responses well past the date discovery motions had to be heard. The court is not sure how plaintiff’s counsel reached this decision given that plaintiff did not provide a court reporter for the hearing, thus, there is no record, and plaintiff’s counsel seems to be relying on an uncorroborated statement of court staff regarding an interpretation of the order. Assuming that court staff made the alleged statement to the attorney who appeared for the attorney of record that day, any statements made by court staff on non-lawyers cannot be a substitute for a licensed attorney’s own interpretation of a court’s ruling.

In addition, just because the court denied the ex parte application to re-open discovery does not mean the court was denying a noticed motion to re-open discovery. An ex parte application and a noticed motion for the same relief are two different things – one requires a showing of exigent circumstances which the court decided there were none articulated and the other does not. An ex parte application obviously seriously implicates one’s due process rights given the lack of notice. The court was simply ruling on the ex parte request before it that day which was a request to re-open discovery or continue the discovery and motion cut-off dates. The court found that there was no basis to make such a decision on an ex parte basis rather than by a regularly-noticed motion given that the trial date was not until May 2014. It follows that plaintiff would have then filed a motion requesting the same relief via a regularly noticed motion. Instead, plaintiff appears to have skipped over getting permission to continue the cut-off dates and went ahead and filed the discovery motions themselves. This decision is not consistent with the law. See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.

Finally, even though plaintiff claimed her ex parte application was necessary due to the 45-day time limit, this argument also fails. First, the main reason plaintiff was in a time crunch was because, although the complaint was filed on June 11, 2012 and despite being able to propound discovery on Glendale 10 days after service of the summons (See e.g. CCP § 2030.020(b)), plaintiff waited over a year until August 30, 2013 to do so. Rawcliffe Decl., ¶¶ 3-4.

Second, even though plaintiff filed her motions to compel further on November 27, 2013, she still failed to comply with the 45-day notice requirement. See e.g. CCP § 2030.300(c). Glendale served its discovery responses on plaintiff on October 10, 2013 by mail (Rawcliffe Decl., ¶ 7) thereby extending plaintiff’s notice period by five calendar days (CCP § 1013(a)), giving plaintiff until November 29, 2013 to provide notice of motions to compel further. The parties had agreed to extend Glendale’s deadline for serving discovery responses to October 11, 2013. Rawcliffe Decl., ¶ 5. However, plaintiff served her discovery motions on Glendale by mail on November 27, 2013, which means that plaintiff missed the deadline with respect to notice. She should have mailed her motions five calendar days before November 29, 2013, the date when notice was to be provided to Glendale. CCP § 1013(a). This is a jurisdictional requirement. Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 685. Therefore, plaintiff also waived her right to compel further response.

Sanctions

Glendale requests monetary sanctions in the amount of $1,200 for having to oppose these motions. CCP §§ 2030.300(d), 2031.310(h), 2033.290(d), 2023.290(a)-(b), (h), and 128.5. Plaintiff and/or plaintiff’s counsel of record are ordered to pay sanctions in the amount of $500 to defendant Glendale and/or defendant Glendale’s counsel of record within 10 days of the date of this order.
Defendant is ordered to give notice.