DIAZ VS MAGEE

1. CASE # CASE NAME HEARING NAME HEARING RE: MOTION TO COMPEL DEPOSITION OF COUNTY OF RIVERSIDE PERSON MOST KNOWLEDGABLE, ROBERT MAGEE, CVPS2401267 DIAZ VS MAGEE FRANK MENDEZ, JAMISON COLE, AND REQUEST FOR SANCTIONS; DECLARATION OF MEGAN BEAMAN JACINTO Tentative Ruling: Granted and denied in part.

Granted as to the deposition of Defendant Magee to take place within 10 days of this order becoming final. Denied as to remaining issues.

Moving party to provide notice pursuant to CCP 1019.5.

This is an employment action brought by Plaintiff Irma Lorena Diaz (“Plaintiff”), former Supervising Code Enforcement Officer, against her former employer, Defendant County of Riverside (“County”) and her former supervisor, Robert Magee (“Magee”) (collectively, “Defendants”).

On April 11, 2024, Plaintiff filed her operative First Amended Complaint (“FAC”) against Defendants, alleging six causes of action: (1) FEHA discrimination; (2) FEHA harassment; (3) retaliation for requesting reasonable accommodation; (4) retaliation for opposition to discrimination and harassment; (5) failure to prevent discrimination and harassment; and (6) CFRA retaliation.

On July 10, 2026, Defendants filed an ex parte application to continue trial, which the Court denied on July 14, 2026.

On August 13, 2026, the Court granted Plaintiff’s ex parte application to advance the hearing date on the underlying motion.

Trial is currently set for September 18, 2026. Discovery cutoff was August 19, 2026.

On June 30, 2026, Plaintiff served deposition notices to: Magee, scheduled for August 11, 2026; County’s Person Most Knowledgeable (“PMK”), scheduled for July 23, 2026; and County’s employee, Frank Mendez (“Mendez”), scheduled for July 27, 2026.

On July 22, 2026, Defendants objected to Mendez’ deposition notice based on unilateral scheduling, and offered deposition dates of August 4, 5, or 6, 2026. Plaintiff was unavailable on these dates and requested alternative dates, which Defendants did not provide. Mendez did not appear for the scheduled deposition date.

On July 22, 2026, Plaintiff served a deposition notice for County’s employee, Jamison Cole (“Cole”), scheduled for August 6, 2026. On July 28, 2026, Defendants objected due to unavailability and stated a willingness to meet and confer on available dates. Cole did not appear for the scheduled deposition date.

On August 3, 2026, Defendants objected to Magee’s deposition due to unavailability, and offered to meet and confer regarding dates of availability. Magee did not appear for the scheduled deposition date.

After meeting and conferring regarding availability, Plaintiff re-noticed County’s PMK depositions. Plaintiff believed that Brandon Fernandez (“Fernandez”) would appear for the PMK deposition on August 5, 2026, and Jessica Urban (“Urban”) would appear for the PMK deposition on August 14, 2026. However, on August 5, 2026, Urban appeared at the PMK deposition instead of Fernandez. Plaintiff realized that she had misread Urban’s dates of availability, and contends County had no knowledge of Fernandez’ designation as a PMK. Accordingly, Plaintiff chose not to proceed with the PMK deposition, and did not ask Urban any questions.

Plaintiff now moves the Court to reopen discovery and compel the depositions of Magee, County’s PMK, Cole, and Mendez within 10 days. Plaintiff acknowledges that County offered Mendez for deposition on August 4-6, 2026, but Plaintiff was unavailable or scheduled for other depositions on this case. Plaintiff seeks sanctions of $14,365.00 against Defendants.

In opposition, Defendants argue that Plaintiff’s motion is procedurally defective because it combines multiple witnesses in a single motion. Defendants further contend that Plaintiff has no standing to compel the deposition of County’s PMK because Urban appeared at the PMK deposition, but Plaintiff’s counsel failed to ask any questions. Defendants assert that discovery should not be reopened and sanctions should not be imposed due to Plaintiff’s lack of diligence. Specifically, Defendants contend Plaintiff delayed in requesting the dates of availability for the depositions of Magee and County’s employees, did not provide PMK categories until June 24, 2026, and did not serve a single deposition notice until June 30, 2026, which was only 50 days before discovery cutoff.

Defendants further assert that they informed Plaintiff that their availability for depositions was extremely limited in August due to the handling attorney’s departure and unavailability of other counsel.

Procedural Issue(s)

A. Timeliness

Code of Civil Procedure section 2024.020(a) requires discovery proceedings to be completed on or before 30 days before trial, and discovery motions to be heard 15 days before trial. A continuance or postponement of trial does not reopen discovery proceedings. (C.C.P. § 2024.020(b).)

Here, trial is set for September 18, 2026. As such, discovery cutoff occurred on August 19, 2026, and the last day for discovery motions to be heard is September 3, 2026. Accordingly, contrary to Defendants’ assertion, Plaintiff’s motion to compel depositions is timely.

However, Defendants are correct that the depositions that Plaintiff seeks to compel will be untimely because they will occur after the discovery cutoff date of August 19, 2026. Parties may stipulate to extend the discovery cutoff date informally, but the stipulation shall be confirmed in a writing that specifies the extended date. (C.C.P. § 2024.060.) There is no evidence that the parties stipulated to extend the discovery cutoff date. (Beaman-Jacinto Decl., Exh. H [“Please also note that we cannot agree to waive the statutory 10-day notice requirement for depositions, nor can we agree to produce witnesses after the August 19 fact discovery cutoff.”].) Accordingly, Plaintiff may only proceed with the depositions if the discovery cutoff date is continued.

B. Multiple Deponents

Defendants argue that Plaintiff’s motion is procedurally defective because she is required to file a separate motion for each deponent, and contend that “[t]here is no statutory basis permitting a party to combine a motion to compel the attendance of multiple witnesses into a single motion, and Plaintiff has cited none.” However, C.C.P. § 2025.450 does not mandate separate motions

nor prohibit combined motions, and Defendants fail to cite to any legal authority in support of their claim. Thus, Defendants’ argument is unavailing.

Deposition of County’s PMK

Defendants contend that Plaintiff has no standing to compel the deposition of County’s PMK. Indeed, a motion to compel attendance at a deposition is only available under C.C.P. § 2025.450 when “a person designated by an organization that is a party...fails to appear for examination, or to proceed with it...” (C.C.P. § 2025.450(a).) Here, Plaintiff only noticed the deposition of “Defendants’ Person or Persons Most Knowledgeable,” and failed to specify a name. (Beaman- Jacinto Decl., Exhs. G and L.)

In an email, Defendants identified Fernandez and Urban as their PMKs and provided dates of availability. (Beaman-Jacinto Decl., Exh. K.) Although Plaintiff sent an emails seeking to confirm that Fernandez would appear on August 5, Defendants did not reply. (Beaman-Jacinto Decl., ¶ 13-14 and Exhs. L and M.) On the date of the PMK deposition, Defendants produced Urban instead of Fernandez. (Beaman-Jacinto Decl., Exh. N.) Thus, because Defendants produced a PMK at the noticed deposition, Plaintiff cannot compel the deposition of County’s PMK due to failure to appear for examination under C.C.P. § 2025.450.

Further, Plaintiff cannot compel a further deposition of County’s PMK. Rather, a motion to compel further answers at deposition is only available where “a deponent fails to answer any question.” (C.C.P. § 2025.480(a).) Here, Plaintiff terminated the PMK deposition without asking any questions. (Beaman Jacinto Decl., Exh. N.) In addition, a motion to compel a further deposition under C.C.P. § 2025.480 requires a separate statement under C.R.C. Rule 3.1345, which Plaintiff has failed to include here. As such, Defendants are correct that Plaintiff cannot compel a deposition of County’s PMK. DENIED

Motion to Reopen Discovery

On motion of any party, the court may reopen discovery to allow discovery proceedings or discovery motions to be heard after the cutoff dates. (C.C.P. § 2024.050(a).)

A. Meet and Confer

A motion to reopen discovery shall be accompanied by a meet and confer declaration. (C.C.P. § 2024.050(a).) Effective January 1, 2026, the meet and confer must be conducted in person, by telephone, or by videoconference, and the meet and confer declaration must state facts showing a reasonable and good faith attempt to informally resolve each issue presented by the motion. (C.C.P. § 2016.040(a).)

Here, Plaintiff seeks to reopen discovery to take the depositions of Magee, County’s PMKs, Cole, and Mendez. (Motion, p. 13.) However, there is no evidence that the parties met and conferred regarding the discovery cutoff date. Rather, at the videoconference deposition of County’s PMK on August 5, 2026, counsel only met and conferred regarding dates of availability before discovery cutoff. (Beaman-Jacinto Decl., Exh. 9, Fernandez Depo., 5:24-6:10.) As such, Plaintiff’s motion to reopen discovery is procedurally defective for failure to meet and confer.

Prior to filing a motion to compel a deposition, the parties are required to meet and confer, or in the case of a failure to appear, the moving party should inquire about the non-appearance. (C.C.P. § 2025.450(b)(2).) Effective January 1, 2026, the meet and confer must be conducted in person, by telephone, or by videoconference, and the meet and confer declaration must state facts showing a reasonable and good faith attempt to informally resolve each issue presented by the motion. (C.C.P. § 2016.040(a).)

On July 22, 2026, defense counsel confirmed via email that Mendez was unavailable on the date noticed for his upcoming deposition on July 27, 2026, and offered alternative dates. (Beaman- Jacinto Decl., Exh. K.) On August 5, 2026, defense counsel confirmed in a videoconference that Cole and Magee would not be appearing at their upcoming depositions, set for August 6 and 11, 2026, respectively. (Beaman-Jacinto Decl., Exh. N.) However, there is no evidence that Plaintiff inquired about the deponents’ non-appearances after they failed to appear at their scheduled depositions, as required by C.C.P. § 2025.450(b)(2). Accordingly, Plaintiff has failed to comply with the meet and confer requirements.

B. Merits

In determining whether to reopen discovery, the court must consider the following factors: (1) the necessity and reasons for discovery; (2) the diligence or lack of diligence of the asking party; (3) the likelihood that permitting discovery will prevent the case from going to trial; and (4) the length of time between any prior trial dates and the presently set trial date. (C.C.P. § 2024.050(b).)

1. Necessity and Reasons for Depositions

Magee is a named defendant, but has yet to be deposed. Accordingly, Magee’s deposition is necessary to support Plaintiff’s claims in this action.

Similarly, County is also a named defendant, and so the deposition of its PMK is also necessary. However, as previously discussed in this motion, it is not clear whether Plaintiff has standing to compel the deposition of County’s PMK.

Plaintiff explains that Mendez’ deposition is necessary because he is a Code Enforcement Supervisor who was promoted to Plaintiff’s position after she was constructively discharged. Mendez is mentioned in the FAC as a male subordinate who was Acting Supervisor while Plaintiff was out on, and returned from, medical leave. (FAC, ¶ 35.) Mendez is not a party to this action, so no written discovery was propounded to him. As such, Mendez’ deposition is necessary.

Plaintiff states that Cole is a “percipient witness” and currently employed with County. However, Cole is not mentioned in the FAC, and Plaintiff fails to explain why Cole’s testimony is necessary to this action. Accordingly, it is unclear how Cole’s deposition is necessary.

2. Plaintiff’s Diligence in Seeking the Depositions

Plaintiff does not demonstrate due diligence in seeking the requested depositions. Plaintiff filed this action on March 6, 2024. However, Plaintiff did not serve her first deposition notice until over two years later, on June 30, 2026.

In an attempt to explain her lack of diligence, Plaintiff’s counsel attests, “It is my practice for strategic reasons to commence depositions of defense witnesses after the conclusion of Plaintiff’s deposition. This practice allows for better preparation and clearer deposition of defense witnesses, while also conserving my Plaintiff-clients’ sparce resources until it is necessary to spend them.” (Beaman-Jacinto Decl., ¶ 3.) Plaintiff’s deposition took place on June 5, 2025, but was not completed. (Beaman-Jacinto Decl., ¶ 4.) Rather, the second portion of Plaintiff’s deposition did not take place until July 21, 2026, a delay that Plaintiff contends was due to changes in Defendants’ counsel. (Id.) At that point, Plaintiff began noticing all of her depositions, scheduling them to take place less than one month before discovery cutoff.

Plaintiff’s ambiguous “strategic reasons” are insufficient to justify her lack of diligence. Plaintiff’s deposition was not completed until over a year after it commenced. Plaintiff had full knowledge of

the impending discovery cutoff dates, but there is no evidence that Plaintiff attempted to have her deposition completed sooner. Further, Plaintiff’s own communications contradict her own “strategic reasons.” Specifically, the evidence shows that Plaintiff attempted to schedule the depositions of Magee, Mendez, and County’s PMK as early as February 18, 2026, and did not make those dates contingent on the completion of her second deposition, which was also discussed. (Garcia Decl., Exh. A.) To the contrary, Plaintiff’s emails show that she sought deposition dates for Magee and Mendez in early May or June, months before her second deposition was to take place. (Garcia Decl., Exh. C.)

Plaintiff argues that she could not have held the depositions earlier because she was in trial from May 1, 2026 through June 12, 2026, which this court can attest to since the trial was in this department (Beaman-Jacinto Decl., ¶ 5.) However, the emails show that Plaintiff could have taken the depositions several months earlier, but failed to follow up. Specifically, after sending her request for available dates in February 18, 2026, Plaintiff did not follow up until a week after Defendants replied on March 24, 2026. (Garcia Decl., Exh. C.) Although Plaintiff complains that Defendants did not offer any dates of availability for its PMKs, the evidence shows that Plaintiff did not provide specific categories of information until June 24, 2026, despite Defendants’ repeated requests for the same. (Garcia Decl., Exh. E.)

Given the above, the evidence shows that Plaintiff’s need to reopen discovery is directly attributable to her own lack of diligence.

3. Permitted Discovery’s Impact on Trial

Here, trial is currently set to take place on September 18, 2026. Plaintiff seeks to compel the depositions within 10 days of the hearing on August 27, 2026, or by September 6, 2026 (a Sunday). This would mean that the latest deposition would occur only 12 days before trial and past the discovery motion cutoff, which neither party currently seeks to extend. Although it is possible that compelling the depositions would require continuing the discovery motion cutoff date and trial, Defendants do not raise this issue or provide any argument as to how the proposed discovery would impact trial.

4. Time Between Previously Set Trial Dates

Trial has been continued once in this case. Specifically, trial was initially set for April 17, 2026. On December 5, 2025, the Court granted the parties’ joint stipulation to continue trial for five months, to September 18, 2026, due to a change in defense counsel.

On July 14, 2026, the Court denied Defendants’ unopposed ex parte application to continue trial to January 11, 2027, citing a lack of good cause. Specifically, Defendants’ ex parte application was based on the then-pending mental examination of Plaintiff, which the Court later denied.

Given the above, it appears that Plaintiff’s need to reopen discovery is attributable, in large part, to her own lack of diligence. Defendants argue that the Court should deny the motion to reopen discovery based on Plaintiff’s lack of diligence, especially as Plaintiff argued Defendants’ corresponding lack of diligence when she opposed Defendants’ motion to compel Plaintiff’s mental examination, which the Court denied. However, the Minute Order dated August 6, 2026, shows that the Court denied Defendants’ motion for reasons beyond a lack of diligence, including the examination’s uncertain time and Defendants’ failure to specify the tests and procedures that would be conducted, as required by statute.

Here, a weighing of the factors tips slightly in favor of reopening discovery. Although the need to reopen discovery is due to Plaintiff’s lack of diligence, at least one of the requested depositions

(i.e., named defendant Magee) is necessary to Plaintiff’s case, and Defendants have failed to argue how proceeding with the proposed depositions would impact trial. Thus, the Court grants the motion for this limited purpose. GRANTED AS TO DEPOSITION OF DEFENDANT MAGEE

Sanctions

Code of Civil Procedure § 2025.450(g)(2) provides that the court shall impose a monetary sanction unless it finds the party who unsuccessfully makes or opposes the motion to compel acted with substantial justification or other circumstances make the imposition of the sanction unjust.

Here, the imposition of sanctions would be unjust in light of Plaintiff’s failure to meet and confer and lack of diligence. DENIED.

2. CASE # CASE NAME HEARING NAME HEARING RE: DEMURRER ON 1ST AMENDED COMPLAINT FOR KUHN VS BMW OF NORTH PRODUCT LIABILITY (OVER $35,000) CVPS2408299 AMERICA LLC, A LIMITED OF GABRIEL M KUHN BY BMW OF LIABILITY COMPANY NORTH AMERICA LLC, A LIMITED LIABILITY COMPANY Tentative Ruling: Sustained.

Sustained without leave to amend as to the 1st cause of action. Sustained with leave to amend as to the 2nd cause of action. Plaintiff granted leave of 10 days to file their 2nd Amended Complaint. If Plaintiff fails to file their 2nd Amended Complaint within 10 days of this order becoming final, moving Defendant is to file their answer as to the remaining operative 1st Amended Complaint within 20 days of this order becoming final.

Moving defendant to provide notice pursuant to CCP 1019.5.

This is a lemon law case. On March 2, 2023, Plaintiffs Gabriel Kuhn and Lindsay Welch (“Plaintiffs”) acquired a 2020 BMW 750xi (“Subject Vehicle”) which was manufactured and/or distributed by Defendant BMW of North America, LLC (“Defendant” or “BMW”). Plaintiffs allege that the Subject Vehicle was delivered with malfunctions and nonconformities. Plaintiffs allege that Defendant knew that the Subject Vehicle contained defective components.

Plaintiffs filed their Complaint on December 26, 2024, and the operative First Amended Complaint (“FAC”) on June 16, 2026. They assert three causes of action for: (1) Violation of the Song Beverly Consumer Warranty Act—Breach of Implied Warranty; (2) Violation of Business and Professions Code § 17200; and (3) Breach of Contract against Indigo Automotive Holdings, LLC dba BMW of Palm Springs.

Defendant now demurs to the first and second causes of action. Defendant argues that there are no allegations that Plaintiffs received a new car warranty when they purchased the Subject Vehicle or that the Subject Vehicle was a new vehicle. Defendant argues that under Rodriguez v. FCA US, LLC (2024) 17 Cal.5th 189 (“Rodriguez”) the Song Beverly Consumer Warranties Act (“Song Beverly Act”) applies only to new vehicle warranties. Defendant argues that the Business and Professions Code §17200 (“UCL”) cause of action is derivative of the Song Beverly Act claims.