Judge Theresa M. Traber, Case Number: BC616434, Date: 2024-12-04 Tentative Ruling

Judge: Theresa M. Traber, Case: BC616434, Date: 2024-12-04 Tentative Ruling

Case Number: BC616434 Hearing Date: December 4, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: December 4, 2024 TRIAL DATE: May 5, 2025

CASE: US Construction Law, et al. v. Jean Pierre Christopher Murray, et al.

CASE NO.: BC616434; consolidated with BC594432

MOTION FOR LEAVE TO REOPEN DISCOVERY

MOVING PARTY: Defendant/Cross-Complainant Jean Pierre Christopher Murray

RESPONDING PARTY(S): Plaintiff/Cross-Defendant US Construction Law & Cross-Defendant Sean Reynolds

CASE HISTORY:

· 09/11/15: Complaint filed (BC594432)

· 04/11/16: Complaint filed (BC616434)

· 06/13/16: Cross-Complaint filed (BC616434)

· 02/22/19: Cases consolidated; this case designated as lead case.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a dispute concerning legal representation. US Construction Law provided legal services to Jean Pierre Christopher Murray, and alleges that the Murrays have refused to pay the legal fees owed. The Murrays, as counter-claimants, allege that US Construction Law and Attorney Sean Reynolds were professionally negligent.

Defendant Murray moves for leave to reopen discovery.

TENTATIVE RULING:

Defendant/Cross-Complainant’s Motion to Reopen Discovery is GRANTED.

Defendant/Cross-Complainant may propound discovery pursuant to the Code of Civil Procedure into the amount of coverage remaining on Cross-Defendants’ eroding professional liability insurance policy. Discovery cutoffs for this limited issue shall be calculated from the current May 5, 2025 trial date. Discovery remains closed as to all other matters.

DISCUSSION:

Defendant/Cross-Complainant Murray moves for leave to reopen discovery.

Legal Standard to Reopen Discovery

The discovery cut-off date to complete discovery is the 30th day before the date initially set for the trial; the cut-off date to have discovery motions heard is the 15th day before the date initially set for the trial. (Code Civ. Proc. § 2024.020(a).) “Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” (Code Civ. Proc. § 2024.020(b).)

Pursuant to Code of Civil Procedure section 2024.050, the Court may grant leave to complete discovery closer to the trial date or to reopen discovery after a new trial date is set:

(a) On 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. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

(b) 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.

(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) 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.

(Code Civ. Proc. § 2024.050.)

Meet and Confer

A party seeking to reopen discovery must file a declaration in which states facts “showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc. §§ 2016.040; 2024.050(a).)

Although Defendant/Cross-Complainant’s counsel has provided a declaration describing the underlying matters into which Defendant seeks to conduct discovery, that Declaration merely asserts that Cross-Defendant Reynolds’s counsel has refused to respond to inquiries into Cross-Defendant’s malpractice insurance. (Declaration of Keith Turner ISO Mot. ¶¶ 16-19.) Those discussions relate to the underlying factual issues, not to the reopening of discovery, on which the Turner Declaration is silent. Defendant has not satisfied his statutory meet-and-confer obligations. Nevertheless, the Court addresses the merits of the motion in the interest of an expeditious resolution of this dispute.

Analysis

Defendant/Cross-Complainant seeks to reopen discovery as to the policy limits of Cross-Defendant Sean Reynolds’s legal malpractice insurance. Cross-Defendant Reynolds served his initial responses to Cross-Complainants’ Form Interrogatories – General on January 5, 2016. (Turner Decl. Exh. B.) Those interrogatories included, as relevant here, Form Interrogatory 4.1, which sought information pertaining to any applicable insurance coverage for the instant claims, including the type of coverage, the contact information of the insurance company and the named insured, the policy number, the limits of coverage, whether any reservation of rights existed, and the contact information of the policy custodian. (Id. Exh. B. No. 4.1.) Cross-Defendant responded to that interrogatory, identifying his professional liability insurance, providing the requested contact information and policy numbers, stating that a reservation of rights exists, and, critically, that the total limit of coverage was $1 million. (Id.) However, on January 22, 2024, which was the previously-scheduled trial date, counsel for Cross-Defendant disclosed that Cross-Defendant’s insurance coverage was subject to a “burning” or “eroding” limit and had been mostly depleted. (Turner Decl. ¶ 16.)

1. Necessity of Discovery

Defendant/Cross-Complainant contends that further discovery is necessary because the limits of coverage for Cross-Defendant’s malpractice insurance is directly relevant to Defendant/Cross-Complainant’s potential recovery on the Cross-Complaint, and, therefore, to the entire litigation strategy. Defendant/Cross-Complainant also claims that this discovery might inform whether to attempt a new round of settlement negotiations—a contention in which the Court places little stock in light of the age of this case and Cross-Defendants’ spirited opposition.

For their part, Cross-Defendants dismiss Defendant/Cross-Complainant’s justification as a “sham,” asserting that, since Cross-Complainants’ counsel claims expertise in attorney malpractice claims and insurance matters, counsel should have been aware of the possibility of an eroding limits policy. Bare assertions in Cross-Defendants’ opposition regarding common practices of insurance policies are not evidence of those practices, and, moreover, Cross-Defendants’ contentions do not bear on whether the proposed discovery is necessary to the litigation. As Cross-Defendants admit, discoverable information includes, inter alia any information which might reasonably assist a party in evaluating the case. (City of Los Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 288.) Information pertaining to the practical limits of a party’s recovery is information which, on its face, might reasonably assist a party in evaluating the case. The Court therefore finds that this factor weighs in favor of reopening discovery.

2. Diligence in Seeking Discovery

Turning to Defendant/Cross-Complainant’s diligence in pursuing the discovery sought, Defendant/Cross-Complainant claims that this motion was necessitated by Cross-Defendant’s late disclosure, and, further, that the nine-month delay between the disclosure and this motion was caused by Defendant/Cross-Complainant’s efforts to informally resolve this dispute.

` Cross-Defendant’s response to the relevant form interrogatory was served on January 5, 2016. (Turner Decl. Exh. B.) Defendant/Cross-Complainant does not state whether any further discovery was conducted into Cross-Defendant’s insurance coverage before the close of discovery, but Defendant/Cross-Complainant contends that the policy’s eroding nature was only discovered on January 22, 2024, some eight years after receiving Cross-Defendant’s Interrogatory Responses. (Turner Decl. ¶ 16.) Although Defendant/Cross-Complainant’s counsel asserts that they have “repeatedly” asked Cross-Defendant for information, the Turner Declaration only describes a single email from co-counsel Scott Humphrey dated June 5, 2024. (Turner Decl. ¶ 17.) A single unanswered email in the nine months between Cross-Defendant’s disclosure of the eroding policy limit on January 22, 2024 and this motion’s filing and service on October 31 is not evidence of diligence. The Court therefore finds that this factor does not weigh in favor of reopening discovery

3. Likelihood of Interference with Calendar or Prejudice

Defendant/Cross-Complainant asserts that there will be no interference with the trial calendar or prejudice to the other parties in light of the current trial date of May 5, 2025 and the narrow scope of further discovery sought. The Court concurs with Defendant/Cross-Complainant’s assessment and finds, that, based on this record, this factor weighs in favor of reopening discovery.

4. Length of Time Since Previous and Current Trial Date

Trial in this action was previously set for January 22, 2024, at which time it was continued to February 6, 2024. (January 22, 2024 Minute Order.) On January 26, 2024, the Court advanced and vacated the February 6 trial date. (January 26, 2024 Minute Order.) The current trial date of May 5, 2025 was set at a June 12, 2024 Trial Setting Conference. (June 12, 2024 Minute Order.) This motion was filed on October 31, 2024, nine months after the January 22, 2024 trial date, and seven months in advance of the current trial date.

Although Defendant/Cross-Complainant has not offered satisfactory evidence of diligence in pursuing the discovery sought, the Court finds that lack of diligence is offset by the narrow scope of the request, the facially-apparent relevance of the information sought, and the relative distance of the current trial date. The Court therefore finds that discovery should be reopened for the limited purpose of conducting discovery into the amount of coverage remaining on Cross-Defendants’ eroding professional liability insurance policy.

CONCLUSION:

Accordingly, Defendant/Cross-Complainant’s Motion to Reopen Discovery is GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated: December 4, 2024 ___________________________________

Theresa M. Traber

Judge of the Superior Court

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