Judge: Robert B. Broadbelt, Case: 19STCV28515, Date: 2022-09-07 Tentative Ruling

Case Number: 19STCV28515    Hearing Date: September 7, 2022    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                Plaintiff Beverlee LaPorta

RESPONDING PARTIES:    Defendants Affeld Grivakes, LLP and David W. Affeld

Plaintiff’s Ex Parte Application for Reconsideration

The court considered the moving, opposition, and reply papers filed in connection with this application.

PLAINTIFF’S APPLICATION FOR RECONSIDERATION

Plaintiff Beverlee LaPorta (“Plaintiff”) moves the court for reconsideration of its August 16, 2022 ruling that (1) sustained defendants Affeld Grivakes, LLP and David W. Affeld’s (“Defendants”) objection to Plaintiff’s notice of remote appearance and (2) ordered that, if Plaintiff testifies at trial, she is required to appear in person. 

The court grants Plaintiff’s application for reconsideration.  (Code Civ. Proc., § 1008, subd. (a).)

First, the court finds that Plaintiff has submitted evidence of new or different facts and circumstances by submitting her declaration stating that Plaintiff had not been advised to avoid travel as of August 16, 2022, but that Plaintiff has since been advised to avoid travel for medical reasons.  (LaPorta Decl., p. 1:8, 1:14-15; LaPorta Decl., Ex. A.) 

Second, the court finds that this evidence is sufficient to meet Plaintiff’s burden of establishing that she cannot travel due to medical concerns.  (LaPorta Decl., Ex. A.)  The court notes that Defendants contend that (1) Plaintiff’s evidence is not new, and (2) the letter submitted by Plaintiff’s nurse practitioner is vague, conclusory, and insufficient to establish that Plaintiff cannot safely travel in order to testify in person at trial.  The court disagrees.  First, the letter references two recent August, 2022 medical appointments, and Plaintiff states in her declaration that she had not been advised of the medical risk of traveling at the time of the August 16, 2022 hearing, but has “since been advised to avoid travel....”  (LaPorta Decl., Ex. A [stating that Plaintiff was evaluated on August 15, 2022 and August 19, 2022]; LaPorta Decl., p. 1:8-9.)  Second, the court finds that the letter from the health care professional stating that Plaintiff is not well enough to travel at this time is sufficient to establish that Plaintiff cannot safely travel to California to testify in person at trial.

After considering the factors set forth in Code of Civil Procedure section 367.75, the court finds that an in-person appearance would not materially assist in the effective management or resolution of this action since Plaintiff presents evidence establishing that she is unable to safely travel.  (Code Civ. Proc., § 367.75, subd. (b)(3); Cal. Rules of Ct., rule 3.672, subd. (h)(3)(B).) 

The court (1) grants Plaintiff’s application for reconsideration and (2) issues a new order overruling Defendants’ objection to Plaintiff’s notice of remote appearance.  (Code Civ. Proc., § 1008, subd. (a).) 

The court notes that Defendants request that the court permit them “the opportunity to complete Plaintiffs’ deposition, including examination regarding her new medical condition and/or conduct an independent medical examination” in the event the court grants Plaintiff’s application on the basis of a new medical condition.  (Opp., 3:12-15.)  The court denies Defendants’ request to depose and examine Plaintiff regarding her medical condition.

The court orders that, if plaintiff Beverlee LaPorta testifies at trial, she may appear remotely.  (Code Civ. Proc., § 367.75, subd. (a).)  

             The court orders plaintiff Beverlee LaPorta to give notice of this ruling.

IT IS SO ORDERED.

DATED:  September 7, 2022

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court