Case Number: KC063903    Hearing Date: July 16, 2014    Dept: O

Watley, et al. v. Antikyan, et al. (KC063903)

1. Defendant Antikyan’s MOTION TO COMPEL PLAINTIFF ANGELA FRAZIER’S RESPONSES TO SPECIAL INTERROGATORIES (SET FOUR)

2. Defendant Antikyan’s MOTION TO COMPEL PLAINTIFF ANGELA FRAZIER’S RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET TWO)

3. Defendant Antikyan’s MOTION TO COMPEL PLAINTIFF JADA WATLEY’S FURTHER RESPONSES TO SPECIAL INTERROGATORIES (SET THREE)

4. Defendant Antikyan’s MOTION TO COMPEL PLAINTIFF JADA WATLEY’S FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS (SET FOUR)

Respondent: Plaintiffs Watley and Frazier (filed a joint opposition)

TENTATIVE RULING

1-4. Defendant Antikyan’s motions to compel discovery are DENIED. Sanctions in the sum of $825.00 are imposed against Defendant and counsel, jointly and severally, payable within 30 days.

Discovery “proceedings” must be completed 30 days before the date INITIALLY set for trial, and discovery “motions must be heard no later than 15 days before the date INITIALLY set for trial. (CCP 2024.020(a).) Discovery “proceedings” are completed the day responses are due. (CCP 2024.010.) A CONTINUANCE OR POSTPONEMENT OF THE TRIAL DATE DOES NOT OPERATE TO REOPEN DISCOVERY PROCEEDINGS. (CCP 2024.020(b).)

Plaintiffs Watley and Frazier filed the Complaint on 5/22/12, naming Defendants Antikyan and Double Hi Express Tours, Inc. Trial was initially set for 6/25/13. The motions, filed 4/10/14, are beyond the statutory cut-off for discovery motions.

Defendant Antikyan contends that trial was continued multiple times because the case was consolidated, however, consolidation is irrelevant to the pending motions, involving parties who had participated in the litigation since the inception of the case.

Defendant Antikyan also contends that because trial was vacated, discovery cut-off should be reset, citing Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245. However, Fairmont Ins. Co. v. Superior Court is distinguishable. There, the court made an exception for actions that have been tried, reversed, and retried. In such instances, the “initial” trial date is reset. Indeed, the court explicitly noted, “In the context of AN ACTION THAT HAS NOT YET PROCEEDED TO TRIAL OR OTHERWISE RESULTED IN A DISPOSITIVE JUDGMENT, the phrase “date initially set for the trial of the action,” Cal. Civ. Proc. Code § 2024(a) is UNAMBIGUOUS. In such instance, it plainly refers to the first date set for trial of the action. Thus, the statute expressly states that continuance or postponement of that date will not operate to reopen discovery.” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 251.)

Here, although trial has been continued multiple times and vacated due to transfer from the Central District back to the East District, the action has not yet proceeded to trial or otherwise resulted in a dispositive judgment. Therefore, the initial trial date controls. The motions are untimely.

Defendant’s later request in its Reply to extend discovery cut-off is improper. As this court advised Defendant in its previous motion, such request must be made by noticed motion. Placing the request in the reply is improper.

Motions are DENIED.

Sanctions: CCP 2023.010(d), 2030.290(c), 2031.300(c), 2030.300(d), and 2031.310(d) authorize the court to impose sanctions against any party/attorney who unsuccessfully makes or opposes a motion to compel 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.

Here, sanctions are appropriate because Defendant filed untimely discovery motions. Sanctions in the sum of $825.00 are imposed against Defendant and counsel, jointly and severally, payable within 30 days.

Request for sanctions under CCP 128.7 is denied for failure to give 21 days safe harbor notice. (CCP 128.7(c).)