2011-00109866-CU-PO

James Arnold vs. John W. Cox

Nature of Proceeding: Motion to Reopen Discovery

Filed By: Miller, Quinton J.

IF ORAL ARGUMENT IS REQUESTED, IT MUST BE REQUESTED BY NO LATER
THAN 4:00 P.M. ON MAY 15, 2014.

ORAL ARGUMENTS ARE CONTINUED TO THE WEEK OF MAY 19TH. THE
PARTIES MAY AGREE ON A DATE FOR ORAL ARGUMENT THE WEEK OF MAY
19 AND INFORM THE COURT CLERK OF THE DATE ON OR BEFORE 4:00 p.m.
on May 16, 2014.

Plaintiff’s Motion to Reopen Discovery and extend certain deadlines is granted only to
the extent that non-expert discovery is to remain open pursuant to the timelines for the
next trial date and insofar as plaintiff may act as his own expert and be deposed by
defendants. However, no relief is granted with regard to allowing additional expert
discovery, without prejudice to plaintiff making a motion under CCP 2034.720.

Plaintiff alleges that in September of 2009 his goats were poisoned by defendants’
agent’s placement of toxic plants on the burn pile on plaintiff’s leased land. The
clippings allegedly contained plants toxic to the goats, resulting in deaths of many live
goats, and stillborn and deformed kids.

Plaintiff seeks to reopen discovery on the ground that his prior counsel, who
substituted out on February 4, 2014, took no depositions and did not name any
experts. Plaintiff states that he did not realize until “late last year” that his attorney
had not listed the experts he had given him, nor did he depose any of the parties or
witnesses or any of the expert witnesses provided by defendants. Plaintiff states that
he sought a new attorney as soon as he became aware of the shortcomings of his
prior attorney.

The initial trial date of May 28, 2013 was continued to March 25, 2014 by the parties’
agreement so they could attend mediation. The most recent trial date was vacated
and the matter placed on the trial setting calendar. (CCMS states that the trial date is
May 12, 2014, however neither party included that trial date in the caption of their
papers.). This ruling is premised on the assumption that there is currently no
scheduled trial date.

Plaintiff did not name any experts on the date of the expert exchange on February 3,
2014. However, plaintiff had provided a “list of experts” attached to his discovery
responses in late 2013. Plaintiff has not sought late submission of expert witness
information under CCP 2034.720.

Defendants contend they will be prejudiced because any evidence to support toxic
poisoning has been lost. However, it does not appear that any of the evidence
mentioned by defendants, such as the goat corpses or toxic plant matter, existed at
the time of the filing of the Complaint, so no loss of evidence has occurred through the
lack of diligence in conducting discovery. Plaintiff contends that some of the deformed
goats are alive and could be evaluated by experts.

Code of Civil Procedure sections 2024.010 et seq. govern the completion of
discovery. The purpose of these provisions is to expedite and facilitate trial preparation
and to prevent delay. See, e.g. Beverly Hospital v. Superior Court ()19 Cal. App.4th
1289, 1295.

CCP § 2024.050 provides:
(a) On motion of any party, the court may grant leave to complete discovery
proceedings, or to have a motion concerning discovery heard, closer to the initial trial
date, or 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.

In Hernandez v Superior Court (2004) 115 Cal.App.4th 1242, the court held that the
trial court should have granted a trial continuance and reopening of discovery because
the plaintiff’s attorney was suffering from pancreatic cancer and could not prepare the
case for trial. However, there was no lack of diligence finding in Hernandez. In this
case, no excuse was provided for why former counsel failed to conduct sufficient
discovery or failed to name any experts on the date of the expert exchange. The lack
of diligence factor weighs against plaintiff, since his attorneys negligence is imputed to
him.

However, as to the other factors to be considered, the requested discovery is
necessary for plaintiff to prepare his case for trial, particularly on the expert witness
issue. There does not appear to be prejudice to defendants because there has been
no loss of evidence due to the delay, and the cost of conducting additional discovery
puts defendants in no worse position than if the discovery had been timely completed
in the first place. The discovery is not likely to cause delay of a trial date, assuming
there is no current trial date as indicated by the parties.

The Court is granting limited relief as set forth above because the strong public policy
favoring disposition on the merits outweighs the competing policy favoring judicial
efficiency.

No sanctions were requested under CCP 2024.050(c).

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.