Judge: Rafael A. Ongkeko, Case: BC720229, Date: 2023-05-10 Tentative Ruling

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Case Number: BC720229    Hearing Date: May 10, 2023    Dept: D

5/10/23

Dept. D.

Rafael Ongkeko, Judge presiding

RINCON, et al. v. GARCIA (BC720229)

Counsel for Plaintiffs:  Heidari Law Group, PC, by Giorgio Cassandra

Counsel for Defendant:  James T. Shott & Associates, by Jenn Bartick

Plaintiffs’ motion to reopen case and reconsideration of April 6, 2023 order of dismissal (filed 4/19/23)

Tentative ruling:

GRANT motion to reconsider; vacate entry of dismissal of 3/29/23; and reinstate case to the civil active docket for a trial setting conference in the PI department (Dept. ___) on __________ at ____a.m.  Counsel are directed to meet and confer and agree on trial dates consistent with that department’s calendar.

The court finds that there is new evidence regarding the unavailability of another witness, Bernadita Aguilar, a party herein, on an element that was not brought to the court’s attention, i.e., that Ms. Aguilar resided more than 150 miles from the courthouse.  At the in-chambers hearing, Defendant did not object to the reading of the deposition, but only to the defense’s inability to conduct a cross-examination if the witness were not available remotely.  However, Ms. Aguilar’s deposition could have been read pursuant to CCP § 2025.620(c)(1) as Plaintiffs’ next witness that afternoon, avoiding an early dismissal of the jury.  Although the foundational information regarding Aguilar’s residency was available to Plaintiffs at that time and should have then been disclosed, the court reconsiders its ruling and finds that despite Plaintiffs’ counsels’ lack of diligence on that issue (not to mention the lead-up to motions in limine and the Kilroy debacle), the dismissal should be, and hereby is, vacated in the interests of justice.  However, any defense request for fees and costs, if any as allowed by law, is reserved and is a conditional part of this ruling. 

Unless waived, notice of ruling by moving parties/Plaintiffs.