Judge: Edward B. Moreton, Jr., Case: 23SMCV00238, Date: 2024-03-12 Tentative Ruling
Case Number: 23SMCV00238 Hearing Date: April 11, 2024 Dept: 205
Superior Court of California
County of Los Angeles – West District
Beverly Hills Courthouse / Department 205
CIENA NORTON,
Plaintiff, v.
STEPHEN PELLICO, as Executor of the Estate of Michael Alan Pellico, et al.
Defendants. |
Case No.: 23SMCV00238
Hearing Date: April 11, 2024
[TENTATIVE] ORDER RE: PLAINTIFF CIENA NORTON’S MOTION TO COMPEL PRODUCTION OF TEXT MESSAGES
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BACKGROUND
Plaintiff Ciena Norton alleges she was raped and severely injured by Michael Pellico during a November 14, 2021 dinner party. Michael Pellico died during the police investigation of the rape, and Plaintiff now sues his estate.
Third party witness Kera Blades Snell was at the dinner party during which Plaintiff was allegedly raped. Snell texted with Pellico “all the time” both before and after the incident.
On August 2, 2023, Plaintiff issued a subpoena commanding Snell to appear and produce documents and things at a deposition. The subpoena requested production of text messages between Snell and Pellico. Snell did not object to the deposition subpoena. (Skaf Decl. ¶6.) Neither did Defendant. (Id.)
At her deposition, Snell confirmed she had not deleted any of her text messages with Pellico. Plaintiff’s counsel advised her that she would be asked to provide the text messages after the deposition, and she agreed not to delete anything. Snell did not object, during her deposition, to Plaintiff’s request that she produce the text messages. (Skaf Decl. ¶7.) Neither did Defendant. (Id.) Snell later refused to produce the text messages. (Id. ¶8.)
Plaintiff now moves to compel Snell’s production of text messages responsive to the subpoena. As of the posting of this tentative ruling, there is no opposition to the motion.
LEGAL STANDARD
Code Civ. Proc. § 2025.480 provides in part:
If a deponent fails to answer any question or to produce any document, electronically stored information, or tangible thing under the deponent’s control that is specified in the deposition notice or a deposition subpoena, the party seeking discovery may move the court for an order compelling that answer or production.
This motion shall be made no later than 60 days after the completion of the record of the deposition, and shall be accompanied by a meet and confer declaration under Section 2016.040.
Notice of this motion shall be given to all parties and to the deponent either orally at the examination, or by subsequent service in writing. If the notice of the motion is given orally, the deposition officer shall direct the deponent to attend a session of the court at the time specified in the notice.
DISCUSSION
The Court first addresses whether the motion is timely. The transcript of Snell’s deposition was certified on November 7, 2023. Sixty days after November 7, 2024 is Saturday, January 6, 2024, and accordingly, the time limit is extended until the next court day. (Code Civ. Proc. § 2016.060.) The motion, accordingly, was required to be filed by January 8, 2024.
Plaintiff sought to file the motion on January 8, 2024 but she was prevented from filing the motion without a calendared informal discovery conference (IDC). Plaintiff instead filed (on January 8) a motion for permission to file her motion to compel which attached a copy of the motion to compel. As Plaintiff submitted a copy of her motion to compel on January 8, the Court concludes the motion to compel is timely.
The Court next addresses the substance of Plaintiff’s motion. Plaintiff is not required to show good cause for production. A showing of good cause is required only in the event that a deponent opposes producing electronically stored information and demonstrates that the information is from a source that is not reasonably accessible because of undue burden or expense. (Code Civ. Proc. § 2025.480, subd. (d).) Snell did not oppose the subpoena and has failed to show that the text messages are not reasonably accessible because of undue burden or expense.
In any event, good cause exists. The text messages may show Pellico’s version of events, might contain his admissions, might identify witnesses, and might be used for impeachment. Snell has admitted she communicated with Pellico “all the time” by text message including about his relationship with Plaintiff from before the dinner party until March 5, 2022. Accordingly, the text messages are clearly relevant to this case.
CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiff’s motion to compel production of text messages pursuant to subpoena.
IT IS SO ORDERED.
DATED: April 11, 2024 ___________________________
Edward B. Moreton, Jr.
Judge of the Superior Court
Superior Court of California
County of Los Angeles – West District
Beverly Hills Courthouse / Department 205
CIENA NORTON,
Plaintiff, v.
STEPHEN PELLICO, as Executor of the Estate of Michael Alan Pellico, et al.
Defendants. |
Case No.: 23SMCV00238
Hearing Date: April 11, 2024
[TENTATIVE] ORDER RE: PLAINTIFF CIENA NORTON’S MOTION TO CONSOLIDATE
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BACKGROUND
Plaintiff Ciena Norton alleges she was raped and severely injured by Michael Pellico during a November 14, 2021 dinner party. Michael Pellico died during the police investigation of the rape, and Plaintiff now sues his estate.
In January 2023, Plaintiff filed Case No. 1 (Case No. 23SMCV00238) – a personal injury action alleging both intentional torts and negligence against Pellico. Pellico’s estate has tendered his defense in that action to his insurer, California Automobile Insurance Company (“CAIC”).
In November 2023, CAIC filed Case No. 2 (Case No. 23STCV28562) – a declaratory relief action against Pellico and Plaintiff seeking an order that CAIC has no obligation to defend or indemnify Pellico in Case No. 1.
This hearing is on Plaintiff’s motion to consolidate the pretrial proceedings in Case Nos. 1 and 2. Plaintiff contends the cases involve the same questions of fact and law, and consolidating discovery will avoid inconsistent results and promote efficiencies. Should the Court consolidate the cases in their entirety, Plaintiff further moves to bifurcate the trial of the issues in the consolidated case to ensure the jurors in the personal injury action do not learn about the insurance. Finally, Plaintiff moves for a preferential trial date because Code Civ. Proc. § 1062.3 provides that trials seeking declaratory relief are entitled to a preferential trial date. Plaintiff argues that setting a preferential trial date will promote settlement because the defense is unlikely to meaningfully negotiate until such time as the Estate has a resolution as to whether the insurer -- as opposed to the Estate -- is liable to pay any judgment in this action.
LEGAL STANDARD
“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” (Code Civ. Proc. § 1048(a).) The purpose of consolidation is to enhance trial court efficiency by avoiding unnecessary duplication of evidence and the danger of inconsistent results. (Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978-979.)
The decision to consolidate is entirely within the Court’s discretion. (Id..) Actions may be consolidated in the discretion of the trial court whenever it can be done without prejudice to a substantial right, and the exercise of such discretion will not be reviewed except in a case of palpable abuse. (Carpenson v. Najarian (1967) 254 Cal.App.2d 856, 862.)
Unless the parties stipulate to consolidate cases, a noticed and written motion to consolidate is required. (CRC 3.350.) A motion to consolidate requires that the parties in each case be listed and that a notice of consolidation be filed in all cases to be consolidated. (Id.) Additionally, “[c]ases may not be consolidated unless they are in the same department. A motion to consolidate two or more cases may be noticed and heard after the cases, initially filed in different departments, have been related into a single department, or if the cases were already assigned to that department.” (LASC 3.3.)
ANALYSIS
The cases Plaintiff seek to consolidate are not related into a single department nor were they assigned to the same department. Case No. 1 is before this Court, while Case No. 2 is before Department 54 of the Stanley Mosk Courthouse. Accordingly, the Court denies the motion to consolidate, which renders the motion to bifurcate and for a preferential trial date moot.
CONCLUSION
Based on the foregoing, the Court DENIES Plaintiff’s motions to consolidate, to bifurcate and for a preferential trial date.
IT IS SO ORDERED.
DATED: April 11, 2024 ___________________________
Edward B. Moreton, Jr.
Judge of the Superior Court