Judge: Elaine Lu, Case: 22STCV34229, Date: 2023-10-03 Tentative Ruling

Case Number: 22STCV34229    Hearing Date: March 7, 2024    Dept: 26

On December 6, 2023, Defendants Justin White (“White”), Applied Approach Services, Inc. (“Applied”), Deena Manion (“Manion”), and David Bifulco (“Bifulco”), whom the Court will refer to as “Moving Defendants” filed the instant motion for an order appointing a discovery referee.  On February 23, 2024, Plaintiffs filed an opposition.  On February 29, 2024, Moving Defendants filed a reply.

In his opposition papers, Plaintiff Ament claims poverty and an inability to contribute toward the fees and expenses of a discovery referee.  In their reply papers, Moving Defendants have submitted extensive evidence to refute Plaintiff’s claim of poverty. 

In general, it is improper to consider reply evidence.  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.)  Evidence filed for the first time in a reply may violate the opposing party’s due process rights if considered by the Court.  (Ibid.)  Thus, evidence and exhibits presented in support of a reply are not generally allowed. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249.) 

Here, Plaintiff Ament has not had an opportunity to address the evidence that Moving Defendants have submitted with their reply.  The Court will provide Plaintiff with an opportunity to respond to Moving Defendants’ reply evidence so that the Court may properly consider all evidence submitted by the parties, including evidence submitted with the moving, opposition, reply, and supplemental opposition papers.

In response to Moving Defendants’ reply evidence, Plaintiff may file and serve no later than March 21, 2024: (1) supplemental evidence (with no page limitation) and (2) a supplemental opposition brief (not to exceed 5 pages).  If Plaintiff would like, Plaintiff may also address in the supplemental opposition any factors that would affect the Court’s selection of the different referees proposed by the parties.

Based on the foregoing, Defendants Justin White, Applied Approach Services, Inc., Deena Manion, and David Bifulco’s motion for a discovery referee is CONTINUED to April 12,  2024 at 8:30 am.

Moving Defendants are to provide notice of this order and file proof of service of such.