DISCOVERY CASE OUTLINE

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CONTENTS

INITIAL TRIAL DATE CUTOFF

EXPERT DISCOVERY CUTOFF

ARBITRATION CUTOFF & DISCOVERY

REOPENING OR EXTENSION OF CUTOFF

ARBITRATION CONTINUANCE

CASES

Beverly Hospital v. Superior Court (1993), 19 Cal.App.4th1289, 1293,1295
Fairmont Insurance Co. v. Superior Court(2000), 22 Cal.4th 245
see also Fairmont Ins. Co. v. Superior Court (1998 reversed 1/27/00), 66 Cal.App.4th 1294
Guzman v. Superior Court(1993), 19 Cal.App.4th 705
Hirano v.Hirano (2d Dist., Div. 8;December 19, 2007) (As modified Jan.2, 2008) 158 Cal.App.4th 1
McCormick v. Sentinel Life (1984), 153 Cal.App.3d 1030
McMillan v. Superior Court(1983), 146 Cal.App.3d 1014
Pelton- Shepherd Industries Inc v. Delta Packaging Products, Inc. (2008), 165 Cal.App.4th 1568
Regan v. Lanet (1987) 197 Cal.App.3d 353
Roe v. Superior Court (1990), 224 Cal.App.3d 642, 645

CASE OUTLINE

INITIAL TRIAL DATE CUTOFF [CCP §2024.020]

Discovery completed 30 days prior
Motions heard 15 days prior
Initial trial date:

Mistrial, new trial, or reversal on appeal of judgment following dispositive motion restarts time limitations on discovery based on the new "initial" trial date

Beverly Hospital v. Superior Court(1993), 19 Cal.App.4th1289

Province v. Center for Women's Health & Family Birth
(1993), 20 Cal.App.4th 1673, 1684

Guzman v. Superior Court
(1993), 19 Cal.App.4th 705[new trial on dgs; tr ct re'vd for denying mot to designate experts]

Fairmont Insurance Co. v. Superior Court
(2000), 22 Cal.4th 245 [Beverly Hospital followed. Ct App was reversed after it rejected the reopening of discovery after a new trail was granted; Sup.Ct also suggests at page 253 that reversal of a dispositive motion such as summary judgment or demurrer would automatically reopen discovery. The purpose of the statutory amendment inserting the word initially was to avoid the discovery abuse of parties seeking continuances for the purpose of reopening discovery. p.251]

Hirano v.Hirano (Cal. App. Second Dist., Div. 8;December 19, 2007) (As modified Jan.2, 2008) 158 Cal.App.4th 1. After reversal of judgment entered after dismissal for failure to prosecute and remand for a trial, discovery reopens. The prior demand for exchange of experts in the first action does not require a response in the second.

"When the prior judgment was reversed, the matter remanded and a new initial trial date set, discovery was automatically reopened. (Fairmont, supra, 22 Cal.4th at p. 250; Beverly Hospital, supra, 19 Cal.App.4th 1289.) Because neither party made a section 2034.210 demand for exchange of expert witness information in connection with the new initial trial date, neither was required to comply with section 2034.260. (West Hills, supra, 98 Cal.App.3d at p. 660.) Accordingly, the trial court erred in excluding appellant’s expert witness evidence on the grounds that appellant failed to make a timely exchange of expert witness information."


Prior law did not specify "initial" trial date

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EXPERT DISCOVERY CUTOFF [CCP 2024.030, 1141.24]

ARBITRATION CUTOFF & DISCOVERY [CCP 2024.040(a)]

CCP 2024.040(a) defers to judicial council rule:
CRC Rule1612 cutoff "...discovery ...completed ...15 days prior to date set [not "initial" date]
CCP 1141.24: No discovery after arbitration. except re experts, per stip, or per court order upon good cause showing

Discovery Cutoff inapplicable to arbitration pursuant to election or stipulation
McMillan v. Superior Court(1983),

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case outline



REOPENING OR EXTENSION OF CUTOFF

Discovery motion cannot be heard without prior order reopening discovery

Pelton- Shepherd Industries Inc v. Delta Packaging Products, Inc. (2008), 165 Cal.App.4th 1568. Cannot grant motion if discovery closed UNLESS motion to reopen discovery granted & discretion is exercised in reopening. In exercising discretion, court must consider the factors listed in section 2024.050.
Case does not clearly hold but suggests the following. The record should reflect consideration of all relevant facts but findings may not be required and the fact that a motion was made and opportunity provided for parties to provide evidence and argument may suffice. Motion to reopen may be made at the same time and the underlying motion for discovery. The motion must be made by a party and not the court. A 2 year delay and serving discovery 2 months prior to trial shows lack of diligence. Marginal relevance shows lack of necessity.

Continuance or postponement of trial does not automatically reopen[2024.020(b)]

CCP 2024.050[ motion] & 2024.060[agreement: confirm in writing / specific date]
Beverly Hospital v. Superior Court (1993), 19 Cal.App.4th1289, 1293,1295
Roe v. Superior Court (1990), 224 Cal. App.3rd642, 646
Fairmont Insurance Co. v. Superior Court(2000), 22 Cal.4th 245, 251 [discovery cutoff provisions added "initial" to correct abuse of parties seeking short continuances for the purpose of reopening discovery.]

Mistrial, new trial, or reversal on appeal reopens discovery

Beverly Hospital v. Superior Court(1993), 19 Cal.App.4th1289
Fairmont Insurance Co. v. Superior Court (2000), 22 Cal.4th 245 [After reversal on appeal, tr ct permitted discovery based on new "initial trial date; App.Ct rev'd tr ct.; Supreme Court reversed appellate court for not following Beverly Hospital]

Motion to reopen [CCP 2024.050 factors]

Pelton- Shepherd Industries Inc v. Delta Packaging Products, Inc. (2008), 165 Cal.App.4th 1568.  In exercising discretion, court must consider the factors listed in section 2024.050. A 2 year delay and serving discovery 2 months prior to trial shows lack of diligence. Marginal relevance shows lack of necessity.
Case does not clearly hold but suggests the following. The record should reflect consideration of all relevant facts but findings may not be required; and,  the fact that a motion was made and opportunity provided for parties to provide evidence and argument may suffice. Motion to reopen may be made at the same time and the underlying motion for discovery. The motion must be made by a party and not the court.

Regan v. Lanet(1987) 197 Cal.App.3d 353[ lst atty did no discovery & 2d atty. sub in after arbitration; tr.ct. den. disc.; aff'd]

McCormick at p. 1050 [Reopening denied; Complexity of case and out of state location of witnesses not good cause for reopening discovery: complexity; importance & location etc. of witnesses existed and known prior to arbitration i.e. nothing changed]

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case outline



ARBITRATION CONTINUANCE [C.C.P.  §1141.24]

Continuance or vacating of arbitration reopens or extends discovery based on new date

Roe v. Superior Court(1990)[Tr date vacated, at issue stricken & arbitration vacated; RD: tr date cutoff of 2024(a) based on "initial" tr date; jud council Rule 1612 permitted by 2024(b) not based on "initial" date]
See also change in law in 1986 to add "initial" & prior case reopening discovery on continuance of trial