Victoria Urenia et al v. Public Storage et al

Filing 185

ORDER DENYING PLAINTIFFS EX PARTE APPLICATION TO EXTEND DISCOVERY CUT-OFF 177 by Judge Dean D. Pregerson. (lc). Modified on 5/7/2015 (lc).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VICTORIA URENIA, an
individual; SOLEDAD CORONA,
an individual,

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Plaintiff,
v.
PUBLIC STORAGE, a real
estate investment trust;
CITY OF LOS ANGELES, a
governmental entity; BANK OF
AMERICA, N.A.; MICHAEL ANZ,

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Case No. CV 13-01934 DDP (AJWx)
ORDER DENYING PLAINTIFF’S EX
PARTE APPLICATION TO EXTEND
DISCOVERY CUT-OFF
[Dkt. No. 177]

Defendants.
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On March 25, 2015, the Court granted Plaintiffs’ previous ex

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parte application to extend the discovery cut-off date to April 20,

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2015, over Defendants’ opposition.1

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Plaintiffs now once again move ex parte to extend the date to June

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20, 2015, arguing that “Plaintiffs have been prevented from

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obtaining discovery from the Defendants.”

(Dkt. Nos. 147, 153, 162.)

(Dkt. No. 177 at 6.)

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This was the third extension of the cut-off date, although
the prior extensions were not on Plaintiffs’ motion. (See Dkt.
Nos. 55, 115.)

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“A schedule may be modified only for good cause and with the

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judge's consent.”

Fed. R. Civ. P. 16(b)(4).

“Rule 16(b)'s ‘good

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cause’ standard primarily considers the diligence of the party

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seeking the amendment.”

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F.2d 604, 609 (9th Cir. 1992) (internal quotation marks omitted).

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There are two active Defendants remaining in this case: Bank

Johnson v. Mammoth Recreations, Inc., 975

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of America, N.A. (“BANA”) and the City of Los Angeles (“the city”).

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Plaintiff wished to take depositions of so-called “persons most

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knowledgeable” (“PMK” witnesses) from both defendants.

Defendants,

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similarly, wished to take depositions of the Plaintiffs.

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February 9, 2015, the magistrate judge in this case determined that

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it would make the most sense for the Plaintiffs to be deposed

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before Defendants’ PMKs.

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magistrate judge also suggested that the proposed subjects on which

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Defendants’ PMKs were to be deposed might be overly broad: “I do

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think they should be narrowed.”

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magistrate judge also suggested that they might not need to be

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narrowed as much as defense counsel wished, and that “counsel

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should discuss these categories.”

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On

(Decl. Peter Kennedy, Ex. B at 4.)

(Id. at 27.)

The

However, the

(Id.)

On March 26, 2015, the day after the Court’s order granting

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Plaintiffs’ previous ex parte extending the cut-off date,

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Plaintiff’s counsel sent an email to the separate counsel for the

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two Defendants asking them “agree on five (5) dates that your

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clients are available for depositions.”

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Greenwood, Ex. 1.)

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was available either March 27 or April 2nd to meet and confer.

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(Id.)

(Decl. Elizabeth

The email also stated that Plaintiffs’ counsel

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On April 6, the city’s counsel emailed Plaintiffs’ counsel

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saying she had “narrowed some of the issues on the PMK deposition”

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and that she had identified two people who “may be able to cover

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most of what you are looking for.”

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city also suggested April 13, 14, and 15 for depositions of the

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Plaintiffs and another witness.

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declares that she followed up by phone and left a voicemail.

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(Decl. Elizabeth Greenwood, ¶¶ 4-5.)

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city again emailed Plaintiff’s counsel, again inquiring about

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Plaintiff’s availability and also volunteering to provide the

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city’s PMKs before April 13 “if necessary.”

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Greenwood, Ex. 3.)

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set dates for the depositions of the Plaintiffs.

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(Id., Ex. 2.)

(Id.)

Counsel for the

Counsel for the city

On April 7, counsel for the

(Decl. Elizabeth

On April 8, counsel for the city unilaterally
(Id., Ex. 4.)

There then followed a series of increasingly confrontational

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emails between Plaintiffs’ counsel and counsel for the city.

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Plaintiffs’ counsel claimed to have no recollection of defense

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counsel’s previous communications and stated that she, Plaintiffs’

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counsel, had sent “multiple emails attempting to meet and confer,”

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although these appear nowhere in the record.

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Plaintiffs’ counsel announced her intent to file a motion to compel

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if an agreement could not be reached.

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city’s counsel stated that she would “happily make available” two

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PMK witnesses who would be able to answer “most if not all” of

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Plaintiffs’ questions.

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available before April 13, or, alternatively, in the afternoon

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after Brenda Hernandez’ deposition.

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(Id.)

(Id.)

(Id., Ex. 6.)

In response, the

She also offered to make them

(Id., Ex. 7.)

Parallel to these communications with the city’s counsel,
Plaintiffs’ counsel was also in communication with BANA’s counsel.
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As noted above, Plaintiff’s counsel had sent an email asking

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Defendants for “five (5) dates that your clients are available for

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depositions.”

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March 30 to ask for dates for depositions of the Plaintiffs, which,

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he noted, “must be completed before BANA’s deposition.”

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Peter Kennedy, Ex. C.)

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“Answer my question, and I will be more than glad to [answer] yours

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Peter.”

BANA’s counsel replied to Plaintiffs’ counsel on

(Decl.

Plaintiffs’ counsel responded the same day:

(Id., Ex. D.)

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On April 8, after the city’s counsel unilaterally set dates to

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depose Plaintiffs, BANA’s counsel again emailed Plaintiffs’ counsel

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to request confirmation of the dates as well as proposed topics for

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the deposition of BANA’s PMK.

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then responded, somewhat confusingly, “Please confirm that your

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clients will be able to testify prior to discovery cut off in this

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case after your proposed dates for deposition testimony.”

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Ex. F.)

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narrowing the topics of the PMK deposition.

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appears to have interpreted this as a refusal to confirm the dates

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of the depositions of the Plaintiffs or to narrow the proposed

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topics of the PMK depositions.

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(Id., Ex. E.)

Plaintiffs’ counsel

(Id.,

She also declined to give any specific proposals for
(Id.)

BANA’s counsel

(Id.)

On April 10, Plaintiffs’ counsel filed an ex parte motion to

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compel Defendants’ depositions as well as a motion for a protective

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order.

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counsel twice that day to reiterate her offer to make two PMK

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witnesses available.

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motion for a protective order was denied the same day, and the

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magistrate judge invited Plaintiffs to schedule a discovery

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conference to discuss the PMK depositions.

(Dkt. No. 168.)

The city’s counsel emailed Plaintiffs’

(Decl. Elizabeth Greenwood, Ex. 11.)

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(Dkt. No. 171.)

The

On

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April 15, a discovery conference was set for April 22 – two days

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after the discovery cut-off.

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the magistrate judge deferred the question of what to do about the

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PMK depositions, pending the Court’s decision on this ex parte

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application.

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(Dkt. No. 175.)

At that conference,

(Dkt. No. 183.)

Plaintiffs bear the burden of showing there is good cause to

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modify the scheduling order.

Johnson, 975 F.2d at 609 (denying

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motion because moving party failed to demonstrate good cause).

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this case, Plaintiffs have not met that burden.

In

As to the city’s

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witnesses, it seems obvious from this record that the city’s

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counsel made every attempt to make the city’s PMK witnesses

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available to Plaintiffs’ counsel.

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to take up any of her offers to set a date to depose those

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witnesses.

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witnesses.

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Plaintiffs declined, entirely,

Plaintiffs were not diligent as to the city’s

As to BANA’s PMK witness or witnesses, although BANA’s counsel

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was not as forthcoming and cooperative as the city’s counsel, BANA

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nonetheless was not unreasonable in asking Plaintiffs for possible

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deposition dates, since the magistrate judge had apparently

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established the order in which the depositions should occur.

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Plaintiffs’ counsel provided no such dates, instead demanding that

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BANA’s counsel set dates first.

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around March 30.

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motion to compel discovery if they believed that it was not

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possible to come to an agreement on dates.2

The discussion then stalled,

At that point, Plaintiffs could have filed a

Or, if they believed

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Plaintiffs’ counsel did eventually file a motion to compel.
It is unfortunate that a discovery conference related to that
motion could not be held until after the discovery cut-off. But
(continued...)
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that the magistrate had not set a particular order for the

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depositions, Plaintiffs could simply have noticed the desired

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depositions and let BANA file for a protective order if it wished

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to do so.

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could have been resolved by the magistrate.

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diligent as to the BANA witnesses.

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Either way, had Plaintiffs acted promptly, the matter
Plaintiffs were not

Plaintiffs have not shown that there is good cause to modify
the scheduling order again.

The ex parte application is DENIED.

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IT IS SO ORDERED.

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Dated: May 7, 2015
DEAN D. PREGERSON
United States District Judge

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(...continued)
that is a result of Plaintiffs’ counsel’s decision to wait to file
the motion until ten days before the discovery cut-off. Given that
Plaintiffs and BANA apparently reached an impasse on March 30, and
given that Plaintiffs knew the discovery cut-off was looming, there
was no reason to wait so long.
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