34-2010-00079869

Janet Keyzer vs. Regents of the University of California

Nature of Proceeding: Motion to Reopen Discovery and for Specific Discovery

Filed By: Matthews, Robert J.

Plaintiff Janet Keyzer’s motion to reopen discovery for specific discovery is ruled upon
as follows.

Defendant’s request for judicial notice is granted. In taking judicial notice of these
documents, the court accepts the fact of their existence, not the truth of their contents.
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(See Professional Engineers v. Dep’t of Transp. (1997) 15 Cal.4 543, 590 [judicial
notice of findings of fact does not mean that those findings of fact are true]; Steed v.
Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120-121.)

Plaintiff seeks to reopen discovery for the taking of deposition of the following
individuals: (1) Wilhelmina Cottman, (2) Anthony Perez, and (3) Dr. Lori Kohler.
Plaintiff also seeks to re-take the depositions of: (1) Teresa Farley, (2) Klea Bartakis,
(3) Dr. Donna Kalauokalani, and (4) Elizabeth Meyer. Plaintiff requests that discovery
remain open on these depositions until June 27, 2014, or until all deposition are
completed. Trial was continued from February 24, 2014 to June 30, 2014. The
discovery cut-off deadline was January 27, 2014.

As an initial matter, the Court notes that Plaintiff’s moves to re-open discovery
pursuant to CCP §2024.050. Plaintiff has not moved to compel subsequent
depositions pursuant to CCP §2025.610. Nonetheless, the Court construes the motion
as one to re-open discovery and to take subsequent depositions.

Plaintiff moves to re-open discovery on the grounds that Defendant recently produced
over 1,400 pages of new documents, of which 134 emails and email chains appear to
be either new and never produced, or which constitute emails or email chains that had
been partially produced, but have now been produced with additional email replies,
responses, or forwards. Plaintiff contends that these documents were responsive to
her Request for Production of Documents, Set One, that was served on August 30,
2011 and that Defendant delayed production of these documents until just a week
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before the initial February 24 trial date. Defendant argues that these documents were
responsive to Plaintiff’s discovery served on November 22, 2013 (after Defendant filed
its motion for summary judgment/adjudication) with responses not due until late
December 2013.

CCP § 2024.050 governs the Court’s discretion to reopen discovery. In exercising its
discretion, the Court must consider all relevant matters, including (1) the necessity and
reasons for the discovery, (2) the diligence of the party seeking discovery, and the
reasons that the discovery was not completed and/or motion to reopen was not
brought earlier, (3) the likelihood that reopening discovery will prevent the case from
proceeding to trial on the date set or will result in prejudice, and (4) the length of time
between the original trial date and the new trial date. (CCP § 2024.050(b).)

The motion to re-open discovery is DENIED. As initial matter, the Court notes that it
has previously recognized Plaintiff’s lack of diligence in conducting discovery. As the
Court stated in its February 7, 2014 rulings on Plaintiff’s three motions to compel
(which were filed upon the Court’s order shortening time), the Court was troubled that
the discovery sought, including certain depositions, could have and should have been
taken long ago, as this case has been pending since 2009.

Plaintiff argues that the recent document production revealed Wilhelmina Cottman,
Anthony Perez, and Dr. Lori Kohler as new witnesses or being more involved and
integral than previously known. However, Plaintiff has been aware that these
individuals could serve as a witness long before the document production. With
respect to Dr. Kohler, Defendant notes that Dr. Kohler was identified in documents
produced to Plaintiff on October 24, 2011. (Declaration of George A. Acero (“Acero
Decl”), ¶26, Ex. Z.) Additionally, Dr. Kohler was identified during Teresa Farley’s
November 26, 2013 deposition. (Id. Ex. BB.) With respect to Anthony Perez, Plaintiff
issued a commission to take his out of state deposition on November 27, 2013. (Id.
Ex. EE.) Plaintiff also issued a commission to take Ms. Cottman’s out of state
deposition on November 27, 2013. (Id. Ex. CC.) Moreover, Ms. Cottman submitted a
declaration in support of Defendant’s motion for summary judgment/adjudication on
November 5, 2013. The absence of diligence in obtaining these witnesses’
depositions undermines Plaintiff’s request to reopen discovery.

Even if the Court granted the motion to re-open discovery, the motion to re-take the
depositions of: (1) Teresa Farley, (2) Klea Bartakis, (3) Dr. Donna Kalauokalani, and
(4) Elizabeth Meyer is DENIED. Pursuant to CCP §2025.610, a Court may grant to
leave a subsequent deposition on a showing of good cause. Here, Plaintiff argues that
the above individuals’ deposition must be re-opened because “all four of these
witnesses were identified repeatedly throughout the new production provided by
Defendant on February 18, 2014.” (Motion, 5:17-20.) Plaintiff’s counsel conclusorily
states that the new emails (attached as Exhibits C-F to the Declaration of Matthew J.
Roberts) “yield new information upon which [the deponent] could not be deposed due
to Defendant’s failure to produce these documents in a timely manner” or reveal “new
mindsets” of Dr. Kalauokalani and Ms. Meyer that were previously unknown to Plaintiff.
(Declaration of Matthew J. Roberts, ¶¶ 8-11; Reply 9:1-5.) Plaintiff, however, fails to
explain how or why the emails provide “new information” or reveal “new mindsets.”

Plaintiff has failed to demonstrate good cause to re-take these depositions.

In sum, Plaintiff’s motion to re-open discovery and to re-take depositions is DENIED.

Defendant’s request for sanction is DENIED.

The Court declines to formally rule on Defendant’s objections to the Declaration of
Michael Ahmad as the Court only relied on admissible evidence.

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