Judge Jill Feeney, Case 19STCV20008 2022-12-21 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

This is an action for negligence arising from an incident where Plaintiff’s car fell into a large sinkhole in July 2018. Plaintiff Tony Maiden filed his Complaint against Defendants the City of Inglewood, the County of Los Angeles, and the California Department of Transportation on June 6, 2019.

Defendant moves for the Court to reconsider its November 7, 2022 order continuing trial and asks that expert discovery be reopened. Defendant argues that the Court should reconsider its decision to keep discovery closed because Defendant will be severely prejudiced if City is prevented from conducting discovery as to Plaintiff’s psychological issues of depression and anxiety. Defendant alleges that Plaintiff intends to produce medical experts to opine on Plaintiff’s depression and anxiety. Defendant also argues that there is good cause to reopen expert discovery and that reopening expert discovery is necessary.

Plaintiff argues that Defendant’s motion is procedurally improper because it is seeking relief from failing to serve a demand for the exchange of expert witness information which must be done through a motion under Code Civ. Proc. 473. Additionally, Defendant fails to set forth new facts, law, or circumstances warranting reconsideration of the November 7, 2022 order granting Plaintiff’s ex parte motion to continue trial. Plaintiff also argues that Defendant fails to show good cause to reopen expert discovery. Plaintiff alleges that the witnesses he disclosed in his discovery responses are not designated experts and have nothing to do with expert discovery. Plaintiff also notes that Plaintiff provided this additional disclosure of fact witnesses although Plaintiff did not need to do so because Defendant’s request for supplemental discovery responses was late.

(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state 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.

(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.

A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, the burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].) A disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Newly produced documents which had been requested but not produced at the time of the earlier hearing properly constitute new of different facts not previously considered. (Hollister v. Benzl (1999) 71 CA4th 582, 585.)

If the above statutory requirements are granted, reconsideration should be granted. However, a court is not required to change its decision upon reconsideration. (Corns v. Miller (1986) 181 CA3d 195, 202, 226 CR 247, 251.) The statutory requirements of Code Civ. Proc. section 1008 only apply when a party asks a court to decide the same matter previously ruled on. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.)

Although parties may move for reconsideration only as authorized by Code of Civil Procedure section 1008, the statute “do[es] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel¿(2005) 35 Cal.4th 1094, 1107.)

Defendant moves for the Court to reconsider its November 7, 2022 order granting Plaintiff’s ex parte motion to continue trial on the grounds that Plaintiff served responses to Defendant’s supplemental interrogatories which stated that he intended to produce experts to opine on his depression and anxiety despite previously stating he would waive these claims.

On November 7, 2022, the Court considered Plaintiff’s ex parte application for a protective order which sought to strike Defendant’s late-filed deposition notices. The Court denied this motion on the grounds that Plaintiff failed to show irreparable harm and instead granted Plaintiff’s alternative request to continue trial and have the discovery dates comport with the original trial date of December 12, 2022. The parties would move forward with the depositions already noticed with additional time before trial to complete the depositions. Defendant’s motion to reconsider includes an affidavit stating that Plaintiff intends to pursue claims for psychological injuries despite agreeing to waive those claims earlier in litigation. (Gandy Decl., ¶¶6-9.) Defendant further contends that it needs to conduct discovery with respect to six percipient witnesses identified on November 15, 2022. (Gandy Decl. ¶5.) Defendant now moves for the Court to reconsider its November 7, 2022 order continuing trial without reopening expert and fact discovery.

The statutory requirements of Code Civ. Proc., section 1008 do not apply here because Defendant is proposing to reopen discovery in order to investigate Plaintiff’s claims of psychological injuries. Plaintiff’s original ex parte motion for a protective order contained an alternative request to continue trial only for the purpose of completing depositions that were already noticed. The ex parte did not include a request to extend expert discovery or fact discovery beyond the depositions that were already noticed. Defendant requested that expert discovery be reopened in its opposition to the ex parte motion. However, this was not the subject of the ex parte in the first instance.

In this case, neither side made a demand for an expert exchange. The deadline to make a demand for expert exchange was October 3, 2022. In reality, Defendant is not seeking reconsideration of the ex parte application, but rather is seeking relief from its failure to make a timely expert demand.

The parties’ dispute appears to be over whether Plaintiff should be permitted to claim psychological injuries despite previously waiving these claims. There is a motion in limine pending on the matter. The Court further notes that pursuant to its own affidavit Defendant knew as of September 27, 2022 that Plaintiff was making claims beyond “garden variety” pain and suffering. (Gandy Decl. ¶7.) Defendant had some time to make an expert demand and ample time to seek relief from its failure to make a timely expert demand. Defendant also had ample time to conduct fact discovery on this issue and/or to seek additional time to conduct targeted discovery on this issue if needed. However, these matters cannot be addressed via a motion for reconsideration of another matter.

The only new information contained within Defendant’s motion for reconsideration is the disclosure by Plaintiff on November 15, 2022 of six additional percipient witnesses. The Court will modify the November 7, 2022 order as outlined above to address this issue.