Judge: Stephen P. Pfahler, Case: 22STCV38178, Date: 2025-05-19 Tentative Ruling

Case Number: 22STCV38178    Hearing Date: May 19, 2025    Dept: 68

Dept. 68

Date: 5-19-25 (advanced from July 30, 2025 via 4-21-25 ex parte order)                                              

Case: 2STCV38178 (related to 23STCV13772)

Trial Date: 9-2-25 (vacated but previously set for 2-18-25 c/f 11-18-24 c/f 10-31-24 c/f 8-19-24 c/f 6-17-24)

REOPEN DISCOVERY

MOVING PARTY: Defendant, City of Los Angeles, et al.

RESPONDING PARTY: Plaintiff, Shirley Huffman, et al.

RELIEF REQUESTED

Motion to Reopen Discovery

SUMMARY OF ACTION

Houston Tipping, son of Shirley Huffman and Richard Tipping, was a Los Angeles Police Department officer, suffered fatal head injury when a fellow officer conducted an exercise causing blunt force trauma to the head and neck of Officer Tipping during a “training exercise” purportedly to simulate a fall from a certain height. The training program was part of the Arrest and Control Bicycle Training Program. Officer Tipping was not provided any protective gear normally associated with such a training program, and other padding was not properly placed.

Plaintiffs allege that at the time of the fatal injury, Officer Tipping was investigating a fellow officer allegedly responsible for sexually assaulting a person, thereby providing motivation to an officer to cause harm to Officer Tipping.

On December 7, 2022, Shirley Huffman, Houston Tipping, and the Estate of Houston Tipping, filed a complaint for Battery, Whistleblower Retaliation, Bane Act, and Wrongful Death against City of Los Angeles and Richard Tipping (nominal defendant). On June 14, 2023, Richard Tipping and the Estate of Houston Tipping filed a complaint for Assault, Battery, Violation of Civil Code section 52.1, Violation of Civil Rights 42 USC 1983, Bane Act, and Wrongful Death against City of Los Angeles, and David Cuellar.

On March 6, 2024, the court entered the stipulation of the parties to consolidate the actions— (Lead Case No. 22STCV38178 with 23STCV13772). On October 25, 2024, the court granted Plaintiffs leave to file a first amended complaint. On October 28, 2024, the parties filed individual first amended complaints under their respective case numbers notwithstanding the stipulation and order consolidating the actions.

At the October 31, 2024, Final Status Conference, the court continued the trial from November 18, 2024, to February 18, 2025. The court declined to continue or extend any previously established pre-trial deadlines. On November 13, 2024, City of Los Angeles and Officer D.C. filed a notice of removal to the District Court. The court stayed the entire case on November 19, 2024, and vacated the February 18, 2025, trial date. On January 28, 2025, the District Court filed a notice of remand with a copy of the January 13, 2025, remand order. On March 21, 2025, the court set the trial date for September 2, 2025.

RULING: Denied in Part/Granted in Part.

City of Los Angeles moves to reopen discovery. City moves for relief on grounds that the first amended complaints warrant new, additional discovery.

The motion for leave to amend to file the first amended complaints was unopposed by City. The proposed amendments were summarized as adding causes of action for Assault and Violation of Civil Rights under 42 U.S.C. § 1983 to the lead case. The consolidated/Cross-Complainant added a cause of action for Whistleblower Retaliation under Labor Code § 1102.5. While the summary remains undisputed, City of Los Angeles represents the amended complaint added new factual allegations, including “salacious allegations of rape and sexual assault purportedly committed by [Officer] Cuellar, which, ... created a motive on Cuellar’s part to injure [“intentionally kill”] [Officer] Tipping.” Because Tipping took a report from the victim, retaliation occurred during the training exercise. [See Declaration of Steve McGuire, Ex. I-L.]

The City at least in part seeks to reopen discovery based on the necessity to investigate and challenge the veracity of a sexual assault victim declaration regarding Defendant Cuellar. City cites to page 1713 within 2499 pages of discovery produced by Plaintiffs’ police practices expert, Barry Brodd, from the July 26, 2024, deposition. The produced documents contained a declaration of the alleged sexual assault victim, including representation of a purported threat by Officer Cuellar to kill the victim if she reported the alleged rape/assault. City denies ever seeing this document prior to this discovery and challenges the authenticity based on the denial by Defendant Cuellar as to any knowledge of the identification of this person. City apparently intends to conduct discovery as to the victim, though admittedly remains unable to locate the person identified as “Kidd.” (Plaintiff in opposition identifies the declarant as Lindy K.) City may still request Plaintiffs provide contact information to “Kidd” though it remains unclear as to any actual efforts to locate the declarant. The purported declaration indicates the declaration was provided in Kansas City, Missouri. [Declaration of Steve McGuire, Ex. E.]

City otherwise concedes that the civil rights violation and labor code section claims added no new facts but still requests leave to conduct discovery into the subject claims as well. The position appears to challenge the factual sufficiency of the claims rather than any discovery though the City vaguely suggests some form of justified discovery.

City maintains discovery was delayed during the removal to federal court under the Federal Rules of Civil Procedure. City asserts it brought the subject motion as diligently as possible. [McGuire Decl.] The case was remanded on January 13, 2025, the case management conference was heard on March 21, 2025, and the subject motion not filed until April 14, 2025, with special ex parte handling required to expedite the hearing. Counsel suggests 68 other assigned cases take up significant amounts of time, thereby explaining the subject delays to the instant motion. [Id.]

Plaintiffs in opposition contend the motion is presented in bad faith as an effort to further delay trial and relies on positions already rejected by the District Court in the opposition to the motion for remand. Plaintiffs also deny any new evidence or prejudice in that City was in possession of the declaration of the victim since the deposition of Barry Brodd on July 25, 2024. Further, the police report taken from the alleged victim was addressed during the April 7, 2023, deposition of David Cuellar, the April 12, 2023, deposition of Officer Mauricio Ramos, and the April 3, 2023, deposition of LAPD PMK Cleon Joseph. [Declaration of Dev Das, Ex. 4-6.]

Plaintiffs also note that the section 1983 claim was always part of the Tipping matter. The consolidation of the actions in no way changed the dynamic of the action (both cases were presumably assigned to the same City attorney). The District Court wrote in relevant part in the January 13, 2025, remand order: “Here, Tipping’s initial complaint included a § 1983 claim, and Defendants did not remove Tipping’s case to federal court within 30 days of receipt of the complaint. Defendants argue that nothing in Huffman’s initial complaint put Defendants on notice that the case was removable. But once Huffman and Tipping’s cases were consolidated in March 2024 “for all purposes” (see Dkt. No. 1-5), the ‘two actions [were] merged into a single proceeding’ and ‘are to be treated as if the causes had been united originally’ for purposes of jurisdictional analysis. Bridewell-Sledge, 798 F.3d at 930. Defendants’ failure to timely remove Tipping’s case thus also bars Defendants from removing the consolidated matter now. Even if the 30-day removal period was not triggered by Tipping’s initial complaint, at the very least, a review of both complaints at the time of consolidation would have put Defendants on notice that the consolidated matter included a § 1983 claim.^[] The March 8, 2024 order consolidating the cases thus constituted an ‘order or other paper from which it may first be ascertained that the case is one which is or has become removable.’ 28 U.S.C. § 1446(b). Defendants then had 30 days from March 8, 2024 to remove this case. Defendants did not remove the case until November 12, 2024.^[]” [Das Decl., Ex. 1.]

City in reply reiterates its “discovery” of the declaration of Lindy K after the discovery cutoff, and the filing of the amended complaints. City disputes Plaintiffs’ position regarding “notice” of the connection between Lindy K and Cuellar via the Ramos deposition, and again only became more aware of the substantive impact of the declaration upon the turnover of the item until July 2024.

The motion was specially set via April 21, 2025, ex parte order advancing the hearing from July 30, 2025, to May 19, 2025. The court specifically ordered City of Los Angeles to serve notice of the order advanced hearing date. Amended notice of the hearing was filed on April 21, 2025.

Pursuant to California Code of Civil Procedure section 2024.050, the Court may continue the discovery cut-off date. “In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: (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.”

The court adheres to a discovery policy encouraging the completion of full discovery prior to trial. While the court considers the diligence or dilatory conduct of the parties in any request for late leave to complete discovery, the court also strongly considers the necessity of the subject matter and any potential prejudice. Again, other than the Lindy K declaration, the scope of the intended discovery remains unspecified. The City acknowledges that in addition to presentation of the declaration after the discovery cutoff, it is also now providing more attention to the case. Plaintiffs characterize said conduct as dilatory and the result of the previously rejected prior effort for delay caused by the removal to federal court.

The court finds no reasonable basis of ignorance regarding the report on or declaration from Lindy Kidd but acknowledges the lack of an opportunity to review the content of the declaration until after the deposition and discovery cutoff. While City elected to forego opposing the motion for leave, the court also finds no correlation between the order granting leave and the Lindy K declaration.

Additionally, the court continued the trial date again at the October 31, 2024, final status conference from November 18, 2024, to February 18, 2025. At the time of the Final Status Conference, the court declined to continue any pre-trial deadlines. While the Brodd deposition was apparently taken after the original jury trial set discovery cutoff, a review of court orders on August 8, 2024, and October 25, 2024, shows no further discovery extensions were apparently provided before the final trial continuance on October 31, 2024. Instead of seeking leave to reopen discovery regarding Lindy K at an earlier date, however, the City elected to remove the action and seek discovery in District Court ostensibly on the basis of the 1983 claim. When this effort was rejected by the District Court and the case remanded in January 2024, City then waited until April 14, 2025—76 days from the January 28, 2025, District Court filed notice of remand from the January 13, 2025, remand order—to seek a discovery extension from this court. The delay required a special ex parte setting of the instant motion. The subject motion was filed 24 days (more than three weeks) from the March 21, 2025, hearing where the court reset the trial date to September 2, 2025.

City acknowledges that other more pressing matters apparently led to the delays [McGuire Decl., ¶ 15], which the court finds more candid than the presented lack of opportunity to conduct (certain unspecified) discovery. The court therefore concludes that subject motion appears at least in significant part due to the decisions by counsel to defer investigation and discovery into the claims of Lindy Kidd and the undefined scope of the 1983 causes of action because of a perceived greater potential “exposure” of other cases under assignment. [Ibid.] Within this context, the court finds this latest motion appears as part of a systematic pattern of delayed attention to the action, thereby leading to continued delays in the trial, including: the denied motion for leave to amend the answer due to a prior admitted oversight in the intake of the action; the removal of the action to federal court two weeks after the last represented continuance of the prior trial date; and, now the subject unbound reopening of discovery request presumably with the intent to seek lay down a foundation for justification of yet another trial continuance.

While City denies any prejudice and maintains adherence to the trial date, the court finds no articulated basis for this position. Given the course of conduct of the subject case and ostensible downgrade of attention warranted by the subject action compared to other proclaimed “high exposure” assigned cases, such explanation appears as rationalization rather than a meritorious consideration. Again, the position is all the more undermined given the lack of any proposed course of discovery other than potential investigation into Lindy K should the court grant leave.

Thus, given the existence of the Tipping 1983 action the entire time, and no representation as to how the consolidation and later amendment somehow changed the course of required discovery into the already existing claim in either the motion or reply, the court finds no basis for the reopening and necessity for further discovery into the 1983 claim. Thus, the motion to reopen discovery into the 1983 claim in any form is DENIED in its entirety.

On the Lindy Kidd declaration, the court accepts that the Brodd deposition circumstances occurring after the discovery cutoff, even with “notice” of the existence of the witness, constitutes a reasonable position for City. The court also accepts the volume of the document production allows for a certain amount leeway even with the admitted ongoing attorney management issues with this case.

More importantly, the court finds the balance for a potential investigation, even deposition of Ms. Kidd, over the potential for prejudice to Plaintiffs in conducting the trial, favors City. Again, while the delays were caused substantially in part from the consistent and documented conduct of City, the court still favors limited discovery into the veracity of the declaration. The court finds sufficient time to conduct a potential deposition or obtain a counter declaration from Ms. Kidd, if possible, and preparation for trial well before the firmly set September 2, 2025, date. The court therefore GRANTS the motion to allow discovery into Lindy Kidd for the limited purpose of challenging the declaration presented with the deposition of Barry Brodd. The court extends the discovery cutoff for the limited purpose of addressing Ms. Kidd to Friday August 1, 2025. ALL discovery must be completed, including law and motion matters by this date. The court will NOT consider any scheduled or ex parte motions after this date.  As such, the Court grants the motion, in part, as set forth above.

The court expects resistance from Plaintiffs’ counsel should City request disclosure of the contact information. Given the declarant is apparently identified, and a last known residence of Kansas City, Missouri, the court finds no ongoing obligation on Plaintiffs’ counsel to assist in the location and service of any subpoena. The court therefore declines to preemptively direct any such disclosure, even if known. City however may bring yet another legally and factually supported motion demonstrating its own efforts and potential basis of knowledge by Plaintiffs, thereby allowing the court to consider both the City’s position and the expected opposition from Plaintiffs’ counsel. The court therefore directs City to reserve hearing dates on an expedited basis as it deems necessary, thereby allowing for the timely filing of the motion(s) rather than waiting for the anticipated rejections by Plaintiffs’ counsel, and then seeking ex parte relief with the court once again. The court otherwise expects the parties to cooperate in the setting of any potential deposition before the August 1, 2025 cutoff without the necessity of a court order.

Trial remains set for September 2, 2025.

City of Los Angeles to provide notice.