Case Number: BC550197 Hearing Date: May 09, 2016 Dept: 73

5/9/16
Dept. 73
Rafael Ongkeko, Judge presiding

GOMEZ vs. CALIFORNIA, etc., et al. (BC550197)

Counsel for plaintiff/opposing party: Steven Spencer; Paul Zuckerman (Carpenter, etc.)
Counsel for defendant/moving party: Anthony Cannon; Debra Cook (Cannon, etc.)

Defendant’s motion to compel answers only (to) requests for admissions, set four and the related form interrogatory 17.1, set four against plaintiff with request for mandatory sanctions against plaintiff and her lawyers, Carpenter Zuckerman & Rowley

TENTATIVE RULING

Filing fee issue: The instant motion involves two discovery methods, but moving party paid only one filing fee. This ruling is conditioned on moving party’s submitting a receipt showing payment of the second motion fee at the time of the hearing.

GRANT motion to compel answers to RFAs, Set Four, and Form Interrogatory 17.1, Set Four. Plaintiff is ordered to serve Code compliant verified responses, without objection, no later than May 19, 2016.

DENY both parties’ request for sanctions.

DISCUSSION (Please note: Unfortunately, the court’s tentative ruling website, which is the source of this version, is not able to show certain formatting contained in the original, such as the court’s use of footnotes, boldface, italics, or the underscoring of case citations. A hard copy will be available for review in court before the hearing.)

This is a personal injury case transferred to this department after the personal injury court deemed the matter “complicated” after considering defendant’s renewed request for transfer.

On April 13, 2016, Defendant California Food Management, LLC filed the present motion to compel answers to RFAs, Set Four, and the corresponding Form Interrogatory 17.1. Defendant asserts that the discovery was mail-served on February 16, 2016, with responses due on March 22, 2016. According to Defendant, no responses or objections were received. In addition to compelling responses, Defendant seeks monetary sanctions in the amount of $1,110.00.

On April 26, 2016, Plaintiff filed an opposition. Plaintiff contends that the discovery was served after the discovery cut-off in this matter and that Defendant did not seek to re-open discovery prior to serving the RFAs and Form Interrogatories. Plaintiff asserts that she sent an objection to the discovery on March 3, 2016. In Plaintiff’s view, the discovery requested is harassing in nature and that discovery should not be re-opened even if requested by Defendant. Plaintiff requests $1,600.00 for opposing the motion to compel.
On May 2, 2016, defendant filed a reply.

ANALYSIS

Originally, trial in this action was set for December 30, 2015 in Department 93, a personal injury department. On Nov. 30, 2015, defendant’s initial request for transfer to an IC court based on, among other reasons, pending discovery and discovery motions, was denied. On Dec. 9, 2015, the parties stipulated to continue the trial date to February 16, 2016, with all applicable discovery dates calculated from the new trial date. Thereafter, Defendant again sought to transfer this case to an individual calendaring court. This time, on Jan. 22, 2016, Dept. 93 granted the motion to transfer. Dept. 93’s minute order of Jan. 22, 2016 provided as follows:

At the direction of Department 1, the above matter is transferred to Judge Rafael Ongkeko, Department 73, Central District, for all purposes and all future proceedings.

A Case Management Conference is set on March 7, 2016, at 8:30 a.m. in Department 73.

Any motions currently scheduled in the Personal Injury Court before the Case Management Conference date will be heard on the date of the Case Management Conference.

All other dates scheduled in Department 93 are advanced to this date and vacated.

At the CMC on March 7, 2016, this court set a new trial date of July 25, 2016. No mention as to discovery dates was made in the Minute Order.

Plaintiff opposes the present motion to compel on a single ground—namely that the discovery in question was served after the discovery cut-off and that discovery has not been re-opened. In Plaintiff’s view, the transfer of the case from Dept. 93 to Dept. 73, which included the vacation of “[a]ll other dates,” did not serve to continue the trial date.

In the court’s view, although an apparent case of first impression at the appellate level, the transfer to the IC court and the vacating of the trial date reset the discovery clock in this case without a need to request that discovery be reopened. Moreover, in each party’s case management statement, neither party indicated that discovery was complete. To the contrary, each side’s statement mentioned further discovery was required. Alternatively, even if discovery might arguably have been cutoff per the CCP, had a motion been brought to reopen, the court would have granted it based on the various matters still pending.

Plaintiff’s argument that no motion to reopen discovery has been filed is technically correct, but beside the point. A quick review of the ex parte application Defendant filed on January 22, 2016, shows that Defendant requested a continuance of the FSC and trial dates, or alternatively, the transfer of the case to an IC court for the specific purpose of resolving outstanding discovery disputes. Through this ex parte application, Defendant expressly requested “that the court continue the trial and final status conference dates to a date not earlier than July, 2016 due to trial counsel’s unavailability due to existing trial obligations and a need to complete outstanding discovery and law and motion.” (Emphasis added.) Thus, it is clear that in seeking to continue the trial date and/or transfer the case, Defendant was also requesting a continuation of the relevant discovery dates. Finally, in the order granting the motion to transfer the case, it states that “All pending motion, final status conference, and trial dates scheduled in the Personal Injury Court are advanced and vacated.” While discovery dates were not expressly mentioned, the motion itself was wholly premised on the need for a continuation and completion of discovery efforts.

Plaintiff makes a brief argument that Defendant’s counsel specifically agreed that the discovery cut-off date would be calculated based upon the February 16, 2016 trial date by signing the first stipulation continuing the trial date. However, this argument goes directly against Plaintiff’s own position. At that time, the only other option for Defendant would have been to sign a stipulation that kept the discovery dates based upon the December 30, 2015 trial date. The fact that Defendant requested that the discovery dates correspond to the new trial date at that time actually serves as further evidence that Defendant wanted the discovery dates to be continued when the case was transferred on January 22, 2016.

Finally, Plaintiff’s contention that the discovery in question is only being used for the purpose of harassment is not well-taken. The discovery seeks admissions regarding the nature and extent of Plaintiff’s damages and does not seek any private or protected information. In fact, it is apparent that these RFAs were necessitated by the fact that Plaintiff’s own expert witnesses have failed or refused to provide documents regarding Plaintiff’s treatment for her injuries.

Based on the foregoing, the court finds that the applicable discovery cut-off date was vacated and to be determined along with future motion, FSC, and trial dates. With the trial date having been set at the CMC, the discovery cut-off date in this case is June 25, 2016. The discovery in question was timely served. The motion to compel is GRANTED.

Each party’s request for sanctions is denied. While most litigants may have simply agreed that discovery could not have been cutoff, thereby avoiding unnecessary motion practice, plaintiff’s counsel’s expressed need for a formal order to reopen discovery could be construed as technically appropriate, precluding an award of sanctions in this case in the interest of justice. On the other hand, Plaintiff’s retaliatory request for sanctions lacks any merit whatsoever. Defendant’s position has been vindicated based on the facts of this case and any sanctions would not be in the interest of justice.

Unless waived, notice of ruling by moving party.