Judge: Frank M. Tavelman, Case: BC693260, Date: 2022-09-16 Tentative Ruling

Case Number: BC693260    Hearing Date: September 16, 2022    Dept: A

ALLEGATIONS: 

Plaintiff Jane A.C. Doe, by and through her guardian ad litem, Susana A. Aguirre (“Plaintiff”) filed suit against Defendants Burbank Unified School District, and Does 1-20 (“Defendants”), requesting a Reconsideration of the Court’s decision heard before the Honorable William D. Stewart on February 28, 2020. At this hearing, the Court denied Plaintiff’s Motion to Compel Further Discovery Responses of Burbank Unified School District to Plaintiffs’ Request for Production of Documents, Set One on the grounds that the Plaintiff had failed to provide specific facts showing good cause for their production. (Minute Order, 2/28/20, p. 2). Plaintiff now files a Motion for Reconsideration alleging that new facts or different facts warrant a renewed Motion to Compel under CCP §1008(b), to be discussed below.  

HISTORY: 

Plaintiff filed its original Complaint on February 7, 2017 alleging a single cause of action for Negligence. (Minute Order, 2/28/20, p. 1). Susana A. Aguirre was appointed Plaintiff’s Guardian Ad Litem on November 29, 2018, and Defendants filed an Answer on March 20, 2019. The instant action arises from the negligent supervision over Plaintiff Jane A.C. Doe (“Plaintiff”), an adult student who is non-verbal and autistic, by Defendants Burbank Unified School District (“BUSD”); and Emilio Urioste, Jr. (“Urioste” and together the “Defendants”). Plaintiff alleges that another student with a prior history of assault, Jared Dillion Drucker (“Drucker”), assaulted Plaintiff on or about January 27, 2017, by inappropriately touching Plaintiff on her buttocks and vaginal area while in a line ordering food. (Id).

The Court received Plaintiff’s on August 24, 2022. The Court received the opposition to the Motion filed by Defendants on September 2, 2022. The Court received the reply to the Motion filed by Plaintiff on September 12, 2022. All motions are timely.

RELIEF REQUESTED: 

Plaintiff is requesting a Reconsideration on the alleged newly discovered facts, discussed below.

ANALYSIS: 

I.          LEGAL STANDARD 

Code of Civil Procedure section 1008 provides, in pertinent part:  

“(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.  

… 

(e)¿This section specifies the court’s jurisdiction with regard to applications for               reconsideration of its orders and renewals of previous motions, and applies to all             applications to reconsider any order of a judge or court, or for the renewal of a previous             motion, whether the order deciding the previous matter or motion is interim or final.             No application to reconsider any order or for the renewal of a previous motion may      be considered by any judge or court unless made according to this section.” 

(Code Civ. Proc. § 1008, subds. (b), (e).)  

II.        New Facts

In the Court’s February 28, 2020 Minute Order, this Court followed the ruling in Digital Music New LLC, holding that “[t]o establish good cause, a discovery proponent must identify a disputed fact that is of consequence in the action and explain how the discovery sought will tend in reason to prove or disprove that fact or lead to other evidence that will tend to prove or disprove the fact.” See Digital Music News LLC v Superior Court (2014) 226 Cal. App. 4th 216 at 224.

In Plaintiff’s Motion for Reconsideration, Plaintiff presents the following new facts that she believes are sufficient to reconsider this Court’s denial of her previous motion to Compel Further Discovery. These new facts are: First, the Defendant BUSD’s FACTS Program does not have any standardized written policies and procedures regarding the supervision of students because the policies and procedures regarding each student is individualized based on the student’s needs, and are contained within the student’s Individualized Education Plan and/or Behavioral Plan, which Plaintiff does not have access to as a result of the February 28, 2020 Order. (Motion for Reconsideration, p. 10). Second, the alleged attacker, Jared Drucker, has had behavior issues since 2014/2015 school year. (Id. at ¶2). Third, Jared Drucker had behavioral issues in 2015/2016 school year. (Id at ¶3). Fourth, Jared Drucker left the FACTS Program to serve time in jail for sexual crimes committed against a girl at a park and when he returned, Sharyl Ruback implemented new supervision policies for him. (Id. at ¶4). Fifth, Plaintiff is unable to discover the supervision policy Elizabeth Bitner developed and that was in place on January 27, 2017. (Id. at ¶5). Sixth, three key witnesses are now unavailable. (Id. at ¶6).

            Here, Plaintiff has not demonstrated that there are new facts to support this instant motion, or alternatively, that the new facts presented in this instant motion were not previously discoverable or why they were not presented in her original request to Compel Further Discovery. First, Plaintiff alleges that “Defendants  BUSD’s FACTS Program does not have any standardized written policies and procedures regarding the supervision of students because the policies and procedures regarding each student is individualized based on the student’s needs, and are contained within the student’s Individualized Education Plan and/or Behavioral Plan, which Plaintiff does not have access to as a result of the February 28, 2020 Order.” (Reconsideration, p. 10). However, in Plaintiff’s original complaint, filed February 7, 2018, Plaintiff alleges, “the BUSD's own policies and procedures mandates that School Districts, administrators, staff and teachers have a duty to supervise students and to enforce policies, procedures rules and regulations to protect them.” (Compl., ¶43). It would be impossible for Plaintiff to have cited or alluded to Defendant’s policies in her original Complaint if there were not any policies established, as is written in the Motion for Reconsideration. Therefore, as to New Fact (1), this is not a newly discovered issue and therefore, does not meet the legal standard for reconsideration under CCP §1008(b).

            As to the Second, Third, and Fourth New Alleged Facts regarding the behavior, conduct, and past alleged sexual misconduct of Jared Drucker, these facts are not new as they were also alleged in Plaintiff’s original Complaint. Specifically, Plaintiff alleged, “Sometime during 2016, there had been at least one prior instance where DRUCKER, had been arrested for touching an eight-year-old girl in a park. After the 2016 incident, BUSD and unknown employees of the Burbank Unified School District were on notice that DRUCKER was a danger to other students.” (Compl., ¶28).  Because Drucker’s alleged misconduct was known to Plaintiff in 2018 and at the time her Complaint was filed, it was easily discoverable that Drucker may have done jail time for his alleged misconduct. Therefore, alleged New Facts 2-4 also do not meet the legal standard for reconsideration under CCP §1008(b).

            Finally, the Fifth and Sixth New Alleged Facts do not provide sufficient explanation as to the relevance of discovering the supervision policy of Elizabeth Bitner or why three witnesses who are  allegedly unavailable at current were not sought to give their account of events prior. “[T]he party seeking reconsideration must provide not only new evidence [or law] but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (See Baldwin v. Home Savings of America, 59 Cal. App. 4th 1192, 1198 (1997)). Thus, plaintiff was required to explain in her motion for reconsideration why she “had not brought the matter [of these facts or law] to the attention of the trial court earlier.” (See Lucas v. Santa Maria Public Airport Dist., 39 Cal. App. 4th 1017, 1028 (1995)). The burden on a party seeking reconsideration of a prior ruling “is the same as that of a party seeking new trial on the ground of ‘newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.’” (See Blue Mountain Development Co. v. Carville, 132 Cal. App. 3d 1005, 1013 (1982).

            Because Plaintiff has failed to either provide new facts or provide an explanation to the Court’s satisfaction as to why the alleged newly presented facts were not brought to the trial court earlier, the Plaintiff’s Motion for Reconsideration is DENIED.

III.        CONCLUSION 

Based on the foregoing, Plaintiff’s Motion for Reconsideration is DENIED.

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RULING: 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

Plaintiff’s Motion came on regularly for hearing on September 16, 2022 with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION IS DENIED. 

IT IS SO ORDERED. 

DATE: September 16, 2022                     ______________________________________

                                                                        F.M. TAVELMAN, Judge 

                                                                        Superior Court of California 

County of Los Angeles