On 14 March 2014, the motion of plaintiff/respondent Charles Szczechowiak (“Plaintiff”) for relief from waiver of objections was argued and submitted. Defendant /appellant OCE Business Services, Inc. (now known as Canon Business Process Services, Inc.) (“Defendant”) filed a formal opposition to the motion.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

I. Statement of Facts
II.
This is an appeal of a decision by the Labor Commissioner of the State of California awarding Plaintiff $31,924.37 in accrued vacation wages, interest and waiting time penalties. Plaintiff was formerly employed by Defendant to perform personal services as an area manager for the period spanning from October 1, 1986 through September 24, 2012 and allegedly failed to receive payment for accrued vacation upon his termination.

III. Discovery Dispute
IV.
On December 12, 2013, Defendant served Plaintiff with Request for Production of Documents, Set One, Form Interrogatories- General, Set One, Form Interrogatories- Employment Law, Set One, Special Interrogatories, Set One and Request for Admission, Set One (collectively, the “Discovery Requests”). (Declaration of Shane Sagheb in Support of Opposition to Motion for Relief from Waiver of Objections, ¶ 3 and Exhibit A.) Consequently, the deadline to serve responses to the foregoing was January 16, 2014. (Code Civ. Proc., §§ 2030.260, subd. (a) [interrogatories], 2031.260, subd. (a) [document requests] and 2033.250, subd. (a) [requests for admission].)

On January 7, 2014, Defendant’s counsel agreed to extend the deadline to respond to the Discovery Requests to January 7, 2014. (Declaration of Jessica Fry in Support of Motion for Relief from Waiver of Objections (“Fry Decl.”), ¶ 3 and Exhibit 2.)

A week later, on January 14, 2014, counsel for both parties met and conferred regarding the outstanding Discovery Requests. (Fry Decl., ¶ 4.) Plaintiff’s counsel requested an additional extension to respond to them. (Id.)

On January 17, 2014, counsel for both parties spoke on the telephone. (Fry Decl., ¶ 5.) Plaintiff’s counsel believed that she and opposing counsel reached an agreement to extend the deadline to respond to the Discovery Requests to January 30, 2014. (Id.)

However, on January 24, 2014, Plaintiff’s counsel spoke with opposing counsel via telephone and was informed that her understanding that the deadline to respond to discovery had been extended to January 30, 2014 was incorrect. Late responses to the Discovery Requests, which were comprised of both objections and substantive responses, were subsequently served on Defendant.

On February 2, 2014, Plaintiff filed the instant motion for relief from waiver of objections. On February 28, 2014, Defendant filed its opposition.

V. Discussion
VI.
Plaintiff moves for an order relieving him from waiver of objections to the Discovery Requests on the grounds of inadvertence, mistake or reasonable neglect.

A. Timeliness
B.
Defendant asserts that Plaintiff’s motion is untimely and therefore must be denied because it is set for hearing less than 15 days before trial is scheduled to commence on March 24, 2014

Code of Civil Procedure section 2014.020, subdivision (a) provides that “[e]xcept as provided in this chapter, any party shall be entitled as a matter of right … to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” Accordingly, if a party properly notices a motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. However, “by negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have the right to have the motion heard.” (Pelton-Shepard Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1586.) Here, March 14th, the date of the hearing on the motion for relief from waiver, is less than 15 days before the March 24th trial date and thus is set to be heard after the discovery motion cutoff date.

A court nevertheless still has the power to hear discovery motions after the discovery motion cutoff provided that the party seeking to have the late discovery motion heard has filed a motion to reopen discovery pursuant to Code of Civil Procedure section 2024.050, subdivision (a). (Id. at 1586-1587.) However, Plaintiff has not filed such a motion and it is an abuse of discretion for the Court to hear a discovery motion after the discovery cutoff date where no motion to reopen discovery has been filed and granted. (Id. at 1588.) Consequently, as Plaintiff’s motion for relief from waiver of objections is procedurally defective, the motion is denied.

VII. Conclusion and Order
VIII.
Plaintiff’s motion for relief from waiver of objections is DENIED.