2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARSHA WRIGHT, Case No.: 17cv1996-BAS (MSB)

12 Plaintiff,

ORDER DENYING DEFENDANTS’

13 v. MOTION TO ALLOW DEFENDANT TO

CONDUCT DEPOSITION OF PLAINTIFF’S

14 OLD GRINGO, et al.,

EXPERT JOSHUA VANETTI

15 Defendants. [ECF NO. 302] 16

17 Before the Court is “Defendants’ Motion to Allow Defendant to Conduct 18 Deposition of Plaintiff’s Expert Joshua Vanetti” (“Instant Motion”), filed on February 18, 19 2021. (See ECF No. 302.) Plaintiff filed an Opposition thereto on February 19, 2021. 20 (ECF No. 303.) The Court finds this motion suitable for ruling on the papers pursuant to 21 Civil Local Rule 7.1 (d). For the reasons discussed in this Order, the Court DENIES the 22 Instant Motion. 23

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

24 Plaintiff, a former designer for Defendants Old Gringo, Inc. (“OGI”) and Old 25 Gringo, S.A. de C.V. (“OGS”) (a Western wear manufacturer and distributor and its 26 Mexican sister company, together the “Old Gringo Companies”) alleges that the 27 principles and officers of the Old Gringo Companies, Defendants Ernest Tarut (“Tarut”) 2 ownership interest in the Old Gringo Companies, but in fact, no such interest was 3 conveyed. (See ECF No. 1.) This basic allegation underlies the remaining causes of 4 action in this case. 5 The last phase of discovery closed in this case on January 13, 2020. (ECF No. 179 6 at 4-5; see also ECF No. 244 at 2 (parties’ joint motion and stipulation stating close of 7 discovery was January 13, 2020).) On February 28, 2020, this Court approved the 8 parties’ stipulation to proceed with Defendants’ deposition of Plaintiff’s expert, Joshua 9 Vanetti, after the close of discovery on March 17, 2020. (ECF No. 245.) As is all too 10 familiar, the seriousness of the public health emergency related to the COVID-19 11 pandemic began to emerge during this time. Nevertheless, Plaintiff’s counsel and 12 expert were prepared to proceed with the deposition as scheduled, via remote 13 technology. (See ECF No. 302-1 at 4 (March 16, 2020 email from Plaintiff’s counsel to 14 Defendants’ counsel confirming the same).) However, Defendants’ counsel represented 15 to Plaintiff’s counsel on March 16, 2020, the day before the scheduled deposition date 16 that “[w]e need a little more time to organize the appearance by Skype or video 17 conference for Mr. Vanetti. We will contact you later in the week about setting that 18 up.” (ECF No. 302-1 at 10.) However, that follow-up contact never occurred. (ECF No. 19 302-1 at 2 (“After March 2020 I barely spoke about the case again with Mr. Norris, 20 because no trial date was set in this matter. . .”), 13 (email from Plaintiff’s counsel to 21 Defendants’ counsel stating that after the March 16, 2020 email, “I never heard from 22 you again about the issue (until now, about 11 months later) and Plaintiff never agreed 23 to a new date.”).) 24 Also on March 16, 2020, in recognition of the recommended public health 25 precautions, Judge Bashant issued an order vacating the hearing date for motions in 26 limine and the April 7, 2020 trial date. (See ECF No. 259 (order vacating) and ECF No. 27 243 (Final Pretrial Order showing April 7, 2020 trial date).) In the ensuing months, the 2 January 13, 2021, the Pretrial Conference for March 1, 2021, and the trial date on March 3 30, 2021. (ECF No. 294.) 4 Defendants first approached Plaintiff about rescheduling Mr. Vanetti’s deposition 5 via email on February 8, 2021. (See ECF No. 302-1 at 16.) In a return email dated 6 February 12, 2021, Plaintiff refused to make her expert available for deposition, noting 7 discovery had closed and 11 months had passed since the agreed upon deposition date. 8 (Id. at 12-13.) Defendants filed this motion asking the Court to permit Mr. Vanetti’s 9 deposition on February 18, 2021. (ECF No. 302.) Plaintiff opposed February 19, 2021. 10 (ECF No. 303.) 11 II. DISCUSSION 12 A. Procedural Issues 13 Plaintiff first argues that Defendants’ motion should be dismissed as procedurally 14 improper because it does not comply with Judge Berg or Judge Bashant’s rule for ex 15 parte motions, or Judge Berg’s rules for discovery motions. (ECF No. 303 at 3-4.) In the 16 interest of conserving the resources of the Court and the parties, and considering the 17 proximity to trial, the Court will forego a discussion of the procedural issues in favor of 18 ruling on the merits. 19 B. Plaintiff Has Not Shown Good Cause to Amend the Scheduling Order 20 A scheduling order “may be modified only for good cause and with the judge’s 21 consent.” Fed. R. Civ. P. 16(b)(4). This good cause standard “primarily considers the 22 diligence of the party seeking the amendment. The district court may modify the 23 pretrial schedule ‘if it cannot reasonably be met despite the diligence of the party 24 seeking the extension.’” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th 25 Cir. 1992) (citing Fed. R. Civ. P. 16 advisory committee’s notes (1983 amendment) and 26 collecting cases). “If that party was not diligent, the inquiry should end.” Id. 27 Here, Defendants ask the Court to permit them to depose Mr. Vanetti eleven 2 deposition “did not take place, because it was set just about the very day the Covid-19 3 restrictions happened, throwing everything and everybody into a state of uncertainty 4 for many months to come.” (ECF No. 302 at 2-3.) They also explain that since then, with 5 no trial date set, “the parties barely spoke about the case again.” (Id. at 1-2.) Based on 6 the foregoing, Defendants ask the Court to permit them to depose Mr. Vanetti at least 7 two weeks prior to trial. (Id. at 3.) 8 Plaintiff, in response, argues that Defendants have not been diligent, and their 9 requested deposition should be denied since they did nothing to pursue this deposition 10 for nearly a year. (ECF No. 303 at 5.) They further point out that Defendants’ request 11 for additional discovery now is inconsistent with their briefing opposing Plaintiff’s 12 attempts to obtain limited additional discovery in April and October 2020, in which they 13 argued that discovery was improper after the close of discovery. (Id. at 4-5 (citing ECF 14 No. 271 at 5 and ECF No. 287 at 3).) Finally, Plaintiff argues that this Court should deny 15 the instant motion as Judge Bashant denied an oral request to permit a late deposition 16 of Plaintiff’s witness, Steve Greenberg. (Id. at 6-7 (citing ECF No. 299 at 27).) 17 The Court finds that Defendants were not diligent in pursuing the deposition of 18 Mr. Vanetti and the circumstances before the Court do not demonstrate good cause to 19 permit the deposition now. In the first place, based on the emails submitted by 20 Defendants, Plaintiff and her expert were prepared to go forward with a remote 21 deposition on March 17, 2020, and Defendants asked to postpone it. Defendants do not 22 explain why they could not have proceeded with the deposition as scheduled. Further, 23 although on March 16, 2020, defense counsel indicated they would follow up the 24 following week, instead she “barely spoke about the case again with Mr. Norris, because 25 no trial date was set in this matter during nearly the entirely [sic] of 2020.” (ECF No. 26 302-1 at 2.) In fact, Defendants elected not to address the deposition again until 27 February 8, 2021, even though two different discovery issues were briefed to the Court 1 While there may have been circumstances where the confusion brought by the 2 ||closures and health orders related to the pandemic may have provided good cause for a 3 ||short delay, Defendants have not demonstrated them, nor have they provided any 4 || explanation for yet again waiting until the eve of trial to pursue Mr. Vanetti’s deposition. 5 || They seemingly explain that they ignored the case until trial was again imminent, as if an 6 ||impending trial date were a prerequisite for discovery. But even after Judge Bashant 7 || reset the trial for March 30, 2021 on December 2, 2020, (ECF No. 294), Defendants 8 || waited for over two months before seeking a deposition date for Mr. Vanetti on 9 || February 8, 2021, (ECF No. 302-1 at 16). Defendants have not even attempted to 10 || explain or justify this delay. 11 lll. CONCLUSION 12 For the foregoing reasons, the Court finds that Defendants have failed to show 13 || good cause to permit the late deposition of Mr. Vanetti and DENIES Defendants’ motion 14 || to permit his deposition. 15 IT IS SO ORDERED. 16 ||Dated: February 22, 2021 = _ 2 FF 18 Honorable Michael S. Berg United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28