Judge: Blaine K. Bowman, Case: 37-2018-00058858-CU-BC-NC, Date: 2023-11-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

SOUTH BUILDING TENTATIVE RULINGS - October 19, 2023

10/20/2023  01:30:00 PM  N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Blaine K. Bowman

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2018-00058858-CU-BC-NC LIFE CARE RESIDENCES INC VS AFFORDABLE SENIOR HOUSING [IMAGED] CAUSAL DOCUMENT/DATE FILED: Ex

Parte Application - Other and Supporting Documents, 10/04/2023 The hearing on this matter shall consist of a discussion between the Court and counsel regarding setting this matter for hearing on a shortened briefing schedule that will allow for consideration of whether discovery should be re-opened for the limited purpose of permitting the continued deposition of John Gamble (Mr. Gamble) in his capacity as a 'person most qualified' for plaintiff, cross-defendant, and counter-cross-defendant Life Care Residences Inc. (Life Care).

Mr. Gamble sat for deposition on three separate occasions as part of one long deposition taking place over multiple days. The last of those days was in February 2023. According to defendant/cross-complainant/cross-defendant Affordable Senior Housing Foundation (ASHF), some of the information uncovered at this time resulted in the need for ASHF to file a Motion to Disqualify, which was adjudicated by this Court in March 2023. (ROA 241.) Notably, about two months prior to that, ASHF made representations to this Court that it was prepared and ready for trial as of February 10, 2023, when this Court held a Trial Readiness Conference. The trial of this case, has, nonetheless, been continued and is not set to begin on November 3, 2023 – in two weeks from the hearing on the instant motion.

ASHF came to this Court on Thursday, October 5, 2023 on an ex parte basis seeking an order compelling Mr. Gamble to sit for further deposition, claiming that was the agreement the parties made back in February 2023 toward the tail end of the last day that Mr. Gamble was actually sitting for deposition. At that ex parte hearing, however, Mr. Gamble and Life Care requested additional time to file formal opposition, so this Court set the matter for October 20, 2023 and allowed for expedited briefing.

The opposition briefing by Mr. Gamble and Life Care focuses heavily on a technical, procedural issue: the failure by ASHF to first bring a motion requesting that discovery be re-opened pursuant to Code of Civil Procedure § 2024.050. The court in Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568 has held that: By simply hearing the motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances, the trial court 'transgresse[d] the confines of the applicable principles of law' [citation] and thereby abused its discretion. Pelton-Shepherd, supra, 165 Cal.App.4th at 1588.

As such, Mr. Gamble and Life Care have raised a valid procedural technicality. They have also filed Objections to Evidence on grounds that ASHF submitted new evidence with their reply briefing.

Calendar No.: Event ID:  TENTATIVE RULINGS

3032899 CASE NUMBER: CASE TITLE:  LIFE CARE RESIDENCES INC VS AFFORDABLE SENIOR HOUSING  37-2018-00058858-CU-BC-NC Trial of this matter is set to begin in two weeks. Trials are not to be a product of surprise, as the discovery process is supposed to allow parties to examine the circumstances – and the relative strengths and weaknesses – of their respective cases. Moreover, California law has a strong overarching principle that cases are to be decided on their merits rather than via technical or procedural fiat. As such, the Court is of the view that the continued deposition of Mr. Gamble is appropriate, but cannot grant that relief while discovery remains closed.

In order to avoid a technical procedural requirement from preventing reaching the merits of the issue – and from preventing a full and fair discovery process by which all pertinent information can be uncovered – the Court intends to set this matter for a future hearing date to enable ASHF to re-file full and complete moving papers seeking both to reopen discovery under Code of Civil Procedure § 2024.050 and to compel further deposition of Mr. Gamble, as well as to include all evidence (since there is some issue with ASHF producing evidence for the first time on reply in the present briefing). While the Court would generally be inclined to set forth a normal briefing schedule, the impending trial date of November 3, 2023 leaves only two weeks to allow for all such briefing unless the deposition is to take place during the trial. As such, the Court tentatively proposes the following briefing and hearing schedule to allow ASHF to cure the procedural defects being raised by Life Care and Mr. Gamble: --October 23, 2023 – moving papers due (to be served electronically) --October 25, 2023 – opposition papers due (to be served electronically) --October 27, 2023 – reply papers due (to be served electronically) --Thursday, November 2, 2023 at 9:00 a.m. – hearing Given that trial is set to begin on Friday, November 3, 2023, the parties should be prepared under this condense briefing schedule for an order that may provide very little time to conduct the deposition – such that Mr. Gamble should be prepared to clear his calendar to sit for deposition either after the hearing on Thursday, November 2, 2023, possibly on Friday, November 3, 2023 in the evening after trial), or over the weekend on November 4, 2023 or November 5, 2023.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

Calendar No.: Event ID:  TENTATIVE RULINGS

3032899