Case Number: BC677664 Hearing Date: May 14, 2019 Dept: 4A

Motion to Reopen Discovery

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On October 4, 2017, Plaintiff Arturo Mendes Gonzalez filed a complaint against Defendant Daniel Cuevas Elizondo alleging negligence for a vehicle collision that occurred on May 28, 2017.

On March 16, 2018, Cross-Complainant/Cross-Defendant Emerik Urban filed a cross-complaint against Defendant/Cross-Complainant/Cross-Defendant Daniel Cuevas Elizondo seeking indemnity, apportionment of fault, and declaratory relief.

On January 18, 2019, Defendant/Cross-Complainant Daniel Cuevas Elizondo filed a cross-complaint against Cross-Defendant Emerik Urban seeking indemnification and apportionment of fault.

On March 4, 2019, the Court ordered trial to be continued from April 4, 2019 to August 9, 2019. In that same order, the Court did not order the discovery cutoff deadlines to follow the new trial date, except for a medical examination of Plaintiff Arturo Mendes Gonzalez and expert discovery, including motions.

On April 16, 2019, Defendant/Cross-Complainant/Cross-Defendant Daniel Cuevas Elizondo filed a motion seeking a limited reopening of discovery to investigate a loss of earnings claim purportedly made by Plaintiff on February 19, 2019 and to inspect Cross-Complainant/Cross-Defendant Emerik Urban’s vehicle.

Trial is set for August 9, 2019.

PARTY’S REQUESTS

Defendant/Cross-Complainant/Cross-Defendant Daniel Cuevas Elizondo (“Moving Party”) requests that the Court order the reopening of discovery for Moving Party to: (1) investigate Plaintiff Arturo Mendes Gonzalez’s (“Plaintiff”) loss of earnings claim and (2) inspect Cross-Complainant/Cross-Defendant Emerik Urban’s vehicle.

LEGAL STANDARD

California Code of Civil Procedure section 2024.050 states: “(a) On motion of any party, the court may grant leave to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) 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.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

DISCUSSION

The Court initially notes that Moving Party has satisfied his meet and confer requirement. (Beck Decl., ¶ 14.)

Inspection of Cross-Defendant Emerik Urban’s Truck

Moving Party states that Plaintiff agreed to continue the discovery cut-off deadline prior to the Court’s denial of an extension of the discovery cut-off with limited exceptions on March 4, 2019. (Beck Decl., ¶¶ 6-7, Exh. E-F.) Moving Party accuses Plaintiff of reneging on his agreement to continue the discovery cut-off deadline after the March 4, 2019 minute order became available. (Beck Decl., ¶ 8, Exh. G.)

Plaintiff argues that he did not agree to continue the discovery cut-off deadline as Moving Party argues. (Szabo Decl., ¶ 11.) Plaintiff contends that Moving party had since October 30, 2017, when the complaint was served to inspect Opposing Party’s vehicle and has offer no excuse for his failure to do so earlier.

The Court agrees that there is no justification provided by Moving Party for reopening discovery to inspect a vehicle he could have examined at any time since October 2017. That the parties discussed or even agreed to seek an extension of the discovery cut-off does not trump the Court’s decision to deny the right to pursue discovery past the initial deadline, with limited exceptions. Moving Party has provided an insufficient basis for reopening to do the vehicle inspection now and no explanation for why it was not done during the first year and one-half that this case was pending.

Discovery Directed to Plaintiff’s Current Employer

Moving Party argues that he should be granted leave to conduct discovery into Plaintiff’s loss of earnings claim arguing that the delay in Plaintiff’s deposition prevented him from learning details about that claim until February 11, 2019 and that Plaintiff’s recent return to work at Jon Richards Company, Inc., is a new disclosure that requires the reopening of discovery to prevent an injustice to Moving Party. Moving Party suggests that the limited discovery he would pursue includes a documents subpoena for Plaintiff’s employment records from Jon Richards Company and a deposition of the person most knowledgeable about Plaintiff’s job performance and prospects at the company where he currently works. (Motion, p. 10:3-10:7.)

Plaintiff professes to having always been forthcoming about his claimed lost earnings and diminished earnings capacity and argues that there is no new or previously undisclosed information that should prompt such a late reopening of discovery into this claim for relief. While the record is unclear about the course of Plaintiff’s employment with Jon Richards Company, Moving Party contends that he was rehired by this employer a mere three weeks prior to his February 11, 2019 deposition and that his earnings impairment claim was based largely on his recent inability to work to full capacity at Jon Richards Company, as testified to during the deposition. (Motion, p. 4:14-4:15.) If it is true that Plaintiff has recently returned to employment with Jon Richards Company – an allegation that Plaintiff fails to address head-on – this new employment provides for potential discovery that is centrally relevant to Plaintiff’s loss of earnings claim. Further, there is good cause to allow late discovery based on a recent change in employment status because the information sought could not have been obtained earlier.

Plaintiff argues that his employer is unqualified to testify about Plaintiff’s loss of earnings claim. (Plaintiff’s Opposition, pp. 8:2-9:12.) However, the Court finds that a deposition of Plaintiff’s employer is reasonably calculated to lead to admissible evidence relating to whether Plaintiff can perform his job at 100%, 75%, or any percentile in-between. A PMK deposition is properly aimed at securing testimony about Plaintiff’s job performance, his aptitude and capacity for full performance, and his prospect for advancement.

Plaintiff asserts that he will be prejudiced if the Court grants Moving Party’s motion, but fails to identify any real prejudice he will suffer if the discovery is allowed. (Plaintiff’s Opposition, pp. 9:14-10:20.) Further, there is no reason why a properly fashioned protective order cannot block Moving Party’s inquiry into any areas that might be considered private or unrelated to the limited purposes for which the deposition is being taken.

In consideration of the above factors, the motion is GRANTED IN PART AND DENIED IN PART.

The Court grants leave for Moving Party to subpoena documents from Jon Richard Company and take a PMK deposition related to Plaintiff’s work performance and job prospects at the company but denied the late request to conduct an inspection of Mr. Urban’s vehicle.

The Court orders the deadline for the above ordered discovery to relate to the August 9, 2019 trial date.

Moving Party is ordered to give notice.