Judge Holly J. Fujie, Case BC562564 2022-08-03 Tentative Ruling

MOVING PARTY: Defendants Edward Younan and Avalon Foods, Inc. (collectively, “Moving Defendants”)

On October 30, 2014, Plaintiff initiated this action, which arises out of injuries Plaintiff sustained in an accident that occurred while he was working. On August 25, 2021, after the close of the second phase of the jury trial, the Court entered judgment against Defendants and in favor of Plaintiff.[1] On November 4, 2021, the Court granted Moving Defendants’ motion for new trial, denied their motion for judgment notwithstanding the verdict (the “JNOV Motion”) and set a new trial date for September 26, 2022. On December 7, 2021, Moving Defendants filed a Notice of Appeal of the Order denying the JNOV Motion. On December 22, 2021, Plaintiff filed a Notice of Appeal and Protective Cross-Appeal of the November 4, 2021 Order.

After filing their appeal, Moving Defendants sought to conduct discovery in advance of the scheduled new trial. In response, Plaintiff filed an ex parte application for an order to stay the proceedings pending the resolution of the appeals pursuant to California Code of Civil Procedure (“CCP”) section 916 (the “Application for Stay”). On May 11, 2022, the Court granted the Application for Stay and vacated the September 26, 2022 trial date.

On June 14, 2022, Moving Defendants filed a motion for leave to conduct discovery pending appeal (the “Motion”).

Plaintiff’s objection to the Declaration of Lydia Alvarez (“Lydia Decl.”) is OVERRULED.[2]

A party who desires to obtain discovery pending appeal shall obtain leave of the court that entered the judgment by filing a noticed motion. (CCP § 2036.030, subd. (a).) The motion for leave to conduct discovery pending appeal shall set forth all of the following: (1) the names and addresses of the natural persons or organizations from whom the discovery is being sought; (2) the particular discovery methods described in Section 2036.020 for which authorization is being sought; and (3) the reasons for perpetuating testimony or preserving evidence. (CCP § 2036.030, subd. (b).) If the court determines that all or part of the discovery requested under this chapter may prevent a failure or delay of justice in the event of further proceedings in the action in that court, it shall make an order authorizing that discovery. (CCP § 2036.040, subd. (a).)

Moving Defendants seek leave to conduct the depositions of: (1) Philma Alvarez (“Philma”); (2) Rita Silva Ramirez (“Ramirez”); and (3) Officer Cesar Velasquez (“Officer Velasquez”). (See Declaration of Andrei Serpik (“Serpik Decl.”) ¶ 2.) Philma is a named Defendant in this matter against whom default has been taken and who is alleged to be a co-employer who trained and instructed Plaintiff on matters related to the bases of liability that Plaintiff first introduced during phase two of the trial. (See Serpik Decl. ¶ 3.) Ramirez was the driver of the vehicle that struck Plaintiff and Officer Velasquez was the responding officer who reported to the scene of Plaintiff’s accident. (Serpik Decl. ¶ 4.) Moving Defendants did not previously depose these witnesses because they did not believe that their testimony was relevant to the allegation in Plaintiff’s operative second amended complaint (the “SAC”) that Plaintiff’s injury was caused by a co-worker’s negligent instructions to retrieve a serving table. (Serpik Decl. ¶ 5.) During the second phase of the trial, Plaintiff introduced testimony concerning numerous alleged breaches of care that had not previously been disclosed in discovery and which were not directly alleged in the SAC. (See Serpik Decl. ¶ 3.)

Moving Defendants contend that they should be permitted to conduct the discovery detailed in the Motion because: (1) the witnesses’ memory of the events will continue to fade due to the amount of time that has already elapsed since Plaintiff’s accident, compounded with the time it will take for the appeals to be resolved; and (2) it is Moving Defendants’ understanding that Philma plans to move to El Salvador. (See Serpik Decl. ¶¶ 4-5; Lydia Decl. ¶ 3.)

The Court finds that Moving Defendants have demonstrated that all or part of the requested discovery is relevant to and may prevent a failure or delay of justice in the event of further proceedings in the action. (See (CCP § 2036.040, subd. (a).) The Court therefore GRANTS the Motion. Moving Defendants may conduct oral depositions of Philma, Ramirez, and Officer Velasquez. The scope of these depositions is to be limited to the issues identified in the Motion.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court

[1] In phase one of the trial, which concluded on October 24, 2019, a jury determined that Moving Defendants were Plaintiff’s employers at the time of his accident. In phase two of the trial, which concluded on July 28, 2021, a jury determined that Moving Defendants did not rebut the presumption of negligence that arises under Labor Code section 3706.

[2] The Court refers to persons with the same last name by their first names and intends no disrespect in so doing.