Judge: Mark A. Young, Case: 19STCV43863, Date: 2023-04-07 Tentative Ruling

Case Number: 19STCV43863    Hearing Date: April 7, 2023    Dept: M

CASE NAME:           Wabi Venice LLC, et al., v. The Abbot Kinney Grill, et al.

CASE NO.:                19STCV43863

MOTION:                  Motion to Reopen Discovery

HEARING DATE:   4/7/2023

LEGAL STANDARD

Except as otherwise provided, “any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.” (CCP, § 2024.020(a).) “[A] continuance or postponement of the trial date does not operate to reopen discovery proceedings” unless a motion to reopen discovery is filed and granted pursuant to CCP section 2024.050. (CCP, § 2024.020(b); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.) CCP section 2024.050 provides that “[o]n motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” (CCP, § 2024.050(a).)

“The purpose of imposing a time limit on discovery is to expedite and facilitate trial preparation and to prevent delay.¿Without a cutoff date, the parties could tie up each other and the trial court in discovery and discovery disputes right up to the eve of trial or beyond. Furthermore, . . . to be effective the cutoff date must be firm or some litigants will manipulate the proceedings to avoid the cut-off date.”¿(Beverly Hosp. v. Superior Court¿(1993) 19 Cal.App.4th 1289, 1295.) The reopening of discovery is a matter that is committed to the trial court’s sound discretion.¿(CCP, § 2024.050(a), (b).)¿ In exercising that discretion, the trial court considers “any matter relevant to the leave requested,” including:¿

(1) The necessity and the reasons for the discovery.¿

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.¿

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.¿

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.¿

(CCP, § 2024.050(b).)¿

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP § 2024.050(c).)

Analysis

Plaintiff Topa Insurance Co. moves for an order compelling an inspection and examination of Defendant The Abbot Kinney Grill LLC’s restaurant premises, The Tasting Kitchen (TTK), due to a recent fire that broke out at the premises in the early morning hours of March 12, 2023.

The Court finds that Plaintiff acted diligently in seeking this relief. Plaintiff discovered the occurrence of this fire from a social media post on March 14, 2023. On March 17, 2023, Plaintiff served a demand to inspect the TTK restaurant, which scheduled the inspection for March 24, 2023. Plaintiff’s counsel met and conferred regarding this inspection. (Sanchez Decl. ¶ 4) Plaintiff argues good cause exists here for leave to conduct the inspection and an order compelling the inspection take place immediately, because the fire occurred only a few days prior to the close of discovery on March 17, 2023. Naturally, it would be impossible for Plaintiff to provide sufficient notice or complete the inspection before the close of discovery.

Plaintiff further reasons that the fact that there was another fire at TTK is relevant to Plaintiff’s claims and may lead to the discovery of admissible evidence. Specifically, Plaintiff believes this inspection will lead to information demonstrating Defendants’ practices, acts, and omissions are negligent and cause fires. Plaintiff insists that they should be able to determine whether the recent fire is related. Plaintiff contends that after the first fire, the shelf screws penetrating into wood in the wall behind TTK’s commercial cooking equipment were left in place and the pasta cooker remained in place. Plaintiff thus reasons if the recent fire was in the wall in the area of the penetrating screws and/or near the pasta cooker, then the recent fire would be relevant in corroborating Plaintiff’s claims of the cause and origin of the fire. Plaintiff concludes that a fire caused by the same dangerous condition (such as a cooking appliance) would be relevant to prove Plaintiff’s theory of causation.

The Court concludes that there is not good cause to permit leave to conduct the inspection. Defendants’ general practices, acts or omissions regarding this fire, which occurred more than four years after the subject fire, would not tend to show Defendants’ negligence in the first instance. The fact that Defendants still maintain the same practices, still maintain the alleged nuisance, or still maintain the same allegedly dangerous condition, would not tend to show that the initial fire was caused by Defendants’ negligence. Even if the second fire occurred in substantially similar conditions as the subject fire, this would not have any tendency to show any relevant fact as to the first fire. Plaintiff would still have to show that the condition was dangerous at the time of the first fire, that Defendants were negligent at the time of the fire or maintained a nuisance at the time of the first fire, independently of the future condition of the premises, or any later fire.

The Court agrees that this is akin to impermissible character evidence. (Evid. Code §§ 1101, 1104.) Plaintiff seeks to show that because Defendants acted negligently in causing the March 2023 fire, that Defendants were negligent in causing the 2018 fire. If such evidence were presented to a fact finder, it would distract from the main question of the actual cause of the 2018 fire. This would confuse the issues and may require extended inquiry into collateral matters. To that end, even if considered relevant, the probative value of such information would be too remote and outweighed by risk of unfair prejudice. (Evid. Code §352.)

Accordingly, Plaintiff’s motion is DENIED.