City of Livermore v. Dennis Baca		CASE NO. 108CV119575
DATE: 25 July 2014	TIME: 9:00	LINE NUMBER: 1

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 24 Julye 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 July 2014, Plaintiff City of Livermore’s Motion to Compel Attendance of Party at Deposition and, alternatively for Leave to Re-Open Discovery was argued and submitted.

1. I.                  [s1] Statement of Facts

This is an eminent domain case filed by Plaintiff City of Livermore against Defendant Dennis Baca for purposes of condemning Defendant’s real property located on East Airway Blvd. in the City of Livermore. The City sought takings along the front of Defendant’s commercial properties as follows: a partial fee simple of 300 square feet, a 1500 square foot slope and drainage easement and a five-year temporary construction easement.  (City of Livermore v. Baca (2012) 205 Cal. App. 4th 1460, 1464).

This action was originally filed in April 2008 by Plaintiff.  (Id.).  In Defendant’s answer filed in September 2008 he did not challenge the taking of the property but demanded additional compensation. (Id.).  The case was heard before Judge Zepeda in May 2009, who granted Plaintiff’s Motions in Limine and excluded all of Defendant’s evidence in support of severance and permanent damages. (Id.).  In August 2009, Defendant filed a notice of appeal. (Id.).

The case was later heard by the Sixth District Court of Appeal, the Appeals Court’s opinion was filed on 15 May 2012.  The issue before the Appeals Court was the exclusion of Defendant’s evidence via Motions in Limine.  The Court of Appeal[s2]  treated the granting of this Motion in Limine as a motion to grant non-suit in favor of the Plaintiff.  (Id. at 1465).  The Court of Appeal disagreed with the trial court’s basis for excluding this evidence and thus reversed the trial court. (Id. at 1474).

During this time Plaintiff deposed Defendant Dennis Baca. (Opposition to the Plaintiff’s Motion at 6).

This case is currently on for trial 18 August 2014.

1. II.                Discovery Dispute

Before the Court is Plaintiff’s Motion to Compel Attendance of Party at Deposition and, alternatively for Leave to Re-Open Discovery.

Trial for this case was originally set for 3 February 2014.  (Kong Decl. ¶ 2).  On 19 November 2013 Plaintiff noticed Defendant Dennis Baca that his deposition would be taken 12 December 2013.  (Plaintiff’s Exhibit A.).  However, Defendant informed Plaintiff via email that Dennis Baca was unavailable for the December deposition.  (Exhibit I).  Following this email, trial and discovery were continued by Judge Overton to 24 March 2014 at Defendant’s request, with Plaintiff stipulating to the continuance.  (Kong Decl. ¶ 5).  This continuance was due to difficulties scheduling depositions as well as holiday scheduling conflicts.

On[s3]  13 March 2014 Plaintiff sought a continuance (with the Defendant’s concurrence) of the trial date, but not discovery, to 16 June 2014. (Kong Decl. ¶ 10-13).  This continuance was due to an unexpected surgery required by Plaintiff’s witness Mr. Simms.  The court granted this continuance.

On 29 May 2014, Plaintiff filed a request to continue the trial date, but not discovery, to 18 August 2014 due to one of Plaintiff’s counsel—Herman Fitzgerald’s—serious medical issues.  Defendant stipulated to this continuance and it was and granted by the court.  (Kong Decl. ¶ 18-20).  Plaintiff’s counsel Christine Fitzgerald corresponded with Defendant’s counsel going forward from this point. (Plaintiff’s Exhibit BB).

Through email correspondence parties originally had settled on holding a deposition for Mr. Baca on 21 February 2014.  (Id.).  The Defendants also offered Mr. Baca to be deposed for the entirety of the following week.  (Id.).  On 20 February 2014, Defendant asked Plaintiff if they would be deposing Mr. Baca the following day.  (Kong Decl. ¶ 7-9).  Plaintiff responded that he would be unable to depose Mr. Baca that day and would get back to Defendant regarding a date for deposition the following week.  (Id.).

Plaintiff never contacted Defendant regarding scheduling the deposition that week, nor did they contact Defendant about the deposition until they emailed Defendant on 25 June 2014 stating that they were re-noticing Mr. Baca’s deposition to 10 July 2014.  (Plaintiff’s Exhibit BB).  Plaintiff contacted Defendant with several emails during June 2014 seeking Mr. Baca’s deposition.  (Id.).  Defendant’s counsel informed Plaintiff that discovery was closed and that even were it not they would need to file a motion to compel the deposition[s4] . (Id.).

It does not appear that Plaintiff ever served a formal notice of deposition for Mr. Baca after the notice for the date of 12 December 2013.

1. III.               Analysis
2. A.     Re-Opening Discovery

When determining whether to reopen discovery, the Court looks to the non-exclusive factors of Code of Civ. Proc. 2024.050 in making its determination.  These factors include:

(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. (Code Civ Proc. § 2024.050).

The majority of the factors in this case cut against reopening discovery.  Plaintiff states that the deposition of Mr. Baca is necessary to evaluate their case and prepare for trial and settlement.  (Plaintiff’s Motion to Compel at 8) However, Mr. Baca has been deposed by Plaintiff in the litigation leading up to this issue.  Plaintiff wants Mr. Baca’s testimony for the purposes of determining damages.  However, both sides have already deposed and disclosed expert witnesses as to the issue of damages.  While Mr. Baca’s deposition may help Plaintiff prepare, it is not necessary.

Mr. Baca was made available for deposition for over a week in February, and Plaintiff has not taken any action seeking a deposition of Mr. Baca up until the June email.  While the Court is sympathetic to the health issues of Plaintiff’s counsel Herman Fitzgerald, the City of Livermore has more than one capable attorney as seen by the correspondence between Defendant and Christine Fitzgerald Esq.  With so much time lapsed between the discovery cutoff and this Motion to Compel Attendance at Deposition, this Court believes there was a lack of diligence on the part of Plaintiff.  This length of time also weighs against reopening discovery as explicitly stated in the fourth statutory factor.

Without a court order specifying otherwise, a continuance of a trial date does not serve to reopen discovery proceedings. (See Code Civ. Proc. § 2024.020(b)).  For purposes of this motion, Defendant agrees that he was treating the 24 March 2014 trial date as the date on which to counter the discovery cutoff.  (Opposing Memorandum of Points and Authorities, page 5, lines 9-11.)  Plaintiff’s many trial continuances did not serve to further shift this discovery deadline as they failed to request a discovery extension.  The discovery cutoff on this matter has well passed and this Court will not reopen discovery in this case.

The trial date is currently set for 18 August 2014.  Given that Plaintiff states it would only take a day to depose Mr. Baca it is unlikely that a deposition would delay the upcoming trial date or substantially prejudice the Defendant.  However, the other factors in this analysis weigh heavily against the reopening of discovery.

Accordingly, the request to reopen discovery is DENIED.

1. B.     Motion to Compel Attendance at Deposition

As noted above, it does not appear that Plaintiff ever noticed the deposition of Mr. Baca after the notice contained in Exhibit A.  However, given this Court’s conclusion that a case for reopening discovery has not been made, and that there was no formal agreement preserving the right to depose Mr. Baca, Plaintiff’s motion to compel the attendance of Mr. Baca at deposition is MOOT.

1. C.     Monetary Sanctions

Plaintiff makes a request for monetary sanctions in the amount of $3,540.  The request is code-compliant but is DENIED since Plaintiff did not prevail in the motion.

Defendant makes a request for monetary sanctions in the amount of $2,925.  The request is not code-compliant.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  (See Rule of Court 2.30).  The party’s motion must also state the applicable rule that has been violated. (Id.).

Defendant cites Code of Civil Procedure 2025.450(g)(1) in support of his request for monetary sanctions.  This code section states:

“If a motion under subdivision (a) [the party giving the notice may move for an order compelling the deponent’s attendance and testimony who does not attend the deposition] is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Defendant has cited an improper authority in 2025.450(g)(1).  This Court believes that the proper authority would be Code of Civil Procedure, § 2024.050(c) Since an incorrect citation of authority was used, Defendant failed to comply with Code of Civil Procedure, § 2023.040.  Defendant’s request for monetary sanctions is DENIED.

1. IV.              Order

Plaintiff’s Motion to Reopen Discovery is DENIED.  Plaintiff’s Motion to Compel Attendance at Deposition is MOOT.

Plaintiff’s request for monetary sanctions in the amount of $3,540 is DENIED.

Defendant’s request for monetary sanctions in the amount of $2,925 is DENIED.