Judge William A. Crowfoot, Case Number: 21STCV01552, Date: 2024-06-10 Tentative Ruling

Judge: William A. Crowfoot, Case: 21STCV01552, Date: 2024-06-10 Tentative Ruling

On September 23, 2021, plaintiff Ahmad Heidari (“Plaintiff”) filed this action against defendants Marriott International Inc. (“Marriott”). This action arises from a slip and fall that occurred on a pool deck that had allegedly deteriorated anti-slip flooring. On February 24, 2021, Plaintiff added SWVP Warner Center Hotel LLC (“SWVP Warner”) and Merritt Hospitality LLC (“Merritt Hospitality”) as Doe 1 and Doe 2. Marriott was dismissed on March 29, 2021.

On September 23, 2021, the operative First Amended Complaint (“FAC”) was filed. The FAC adds Nafiseh Heidari as a plaintiff (hereafter, collectively with Plaintiff, “Plaintiffs”).

SWVP Warner, Merritt Hospitality, and HEI Hotels (collectively, “Defendants”) seek an order clarifying a minute order issued on April 3, 2024 (“April 3 Order”), or alternatively, a protective order against additional discovery.

Pursuant to Code of Civil Procedure section 1008, subdivision (b), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)¿

As it relates to new or different facts, circumstances, or law under Code of Civil Procedure Section 1008, subdivision (a), “the moving party must provide a satisfactory explanation for the failure to produce that evidence at an earlier time.”¿ (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) Furthermore, “facts of which the party seeking reconsideration was aware at the time of the original ruling are not “new or different.” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)¿

Defendants seek clarification on whether discovery has been reopened. This case was initially assigned to Department 30 of the Spring Street Courthouse (“Department 30”). On January 12, 2024, after the parties submitted that they were ready for trial, the matter was assigned to the Honorable Patrick T. Madden in Department S28 of the Governor George Deukmejian Courthouse (“Department S28”) for trial.

After being assigned the matter, Judge Madden issued a series of orders ruling on the parties’ motions in limine. On February 7, 2024, Judge Madden set an evidentiary hearing pursuant to section 402 of the Evidence Code to determine whether to allow testimony from Plaintiffs’ expert witness, Matthew Reynolds. The hearing took place on February 29, 2024, and March 1, 2024, and the parties subsequently submitted supplemental briefing on the issue on March 4, 2024.

On March 6, 2024, Judge Madden ruled in favor of Plaintiffs and permitted Mr. Reynolds’s testimony to be presented (“March 6 Order”). Judge Madden also permitted Plaintiffs to add new records and three new witnesses, Jeffrey Block, Bruce Greenfield, and Michael Van Do to the Exhibit and Witness Lists for trial. Judge Madden then gave Defendants the opportunity to depose these three newly-added witnesses and designate a new expert witness to address Mr. Reynolds’s opinions by vacating the trial date and the discovery cut-off date for both fact and expert witness discovery. The matter was returned to the Honorable Lynne M. Hobbs in Department 30 and a trial setting conference was scheduled for April 3, 2024.

Prior to the conference, on March 27, 2024, Plaintiff’s counsel submitted a declaration arguing that fact discovery has been reopened in its entirety and that the trial setting conference should be continued. Plaintiffs’ counsel claimed that due to Defendants’ gamesmanship, they only recently learned of the possibility of additional defendants who should be held responsible for the unlicensed installation of a pool deck and coping after the initial construction of the pool; Plaintiffs’ counsel stated that written discovery had been propounded on Defendants to determine the identities of those defendants involved in the installation.

In response, on March 29, 2024, Defendants submitted a statement in which they argued that Judge Madden’s ruling reopening discovery was without jurisdiction because it contravened Judge Hobbs’s earlier rulings on Plaintiffs’ previous requests to reopen discovery. Despite Defendants’ contention that whether to reopen discovery was an outstanding issue which needed to be addressed, the issue of reopening discovery was not addressed in the April 3 Order. In the April 3 Order, Judge Hobbs only scheduled the final status conference and trial (both of which have since been vacated after the case was re-assigned to this Independent Calendar court). On April 19, 2024, Defendants filed this motion for clarification or, in the alternative, a protective order.

Defendants argue that Judge Madden impermissibly reopened discovery even though fact discovery was closed in April 2023 and that it has not been reopened despite Plaintiffs’ multiple requests to Judge Hobbs to do so. Plaintiffs’ requests were made before Judge Hobbs in Department 30 (and denied) on May 4 and July 28, 2023.

At a final status conference scheduled on May 4, 2023, Judge Hobbs continued the trial date from May 18, 2023, to August 24, 2023, as stipulated by the parties. Judge Hobbs also ordered that all pretrial deadlines, including discovery and motion cut off dates, would track the new trial date. After this order was issued, defense counsel requested oral argument to object to reopening fact discovery on the grounds that the stipulation only included an extension of expert discovery. Judge Hobbs therefore continued the final status conference to May 5, 2023.

The minute order issued on May 4, 2023, reflects that later, outside the presence of counsel, Judge Hobbs reviewed the stipulation and amended her order to indicate that only expert discovery would track the new trial date “as requested by the parties in their joint stipulation.” The record does not indicate that the Court reviewed the declaration filed by Plaintiffs’ counsel on the same day, which argued in favor of reopening fact discovery and claimed that Defendants had employed obstructionist tactics.

Several months later, on July 25, 2023, Plaintiffs filed an ex parte application requesting to reopen fact discovery so their motions to compel the deposition of SWVP Warner and Merritt Hospitality could be heard. These motions were filed on March 29 and April 6, 2023, and scheduled to be heard on July 26 and August 23, 2023. On July 26, 2023, Judge Hobbs granted Plaintiffs’ request to reopen discovery in part for the limited purpose of hearing Plaintiffs’ motion to compel the deposition of SWVP Warner; the motion was denied as moot and Judge Hobbs did not award sanctions.

It would be an overstatement to characterize Judge Madden’s March 6 Order as an improper order granting reconsideration of Judge Hobbs’s earlier rulings. Rather, the March 6 Order denied a motion in limine to exclude Plaintiffs’ expert witness and allowed Plaintiffs to introduce new witnesses and exhibits; therefore, discovery was reopened for the limited purpose of allowing Defendants the opportunity to investigate and address Plaintiffs’ new evidence.

The Court notes that Defendants’ motion is, ironically, an improper motion for reconsideration/clarification because it is an untimely request to review the March 6 Order issued by Judge Madden purporting to reopen discovery, and not Judge Hobbs’s April 3 Order. Furthermore, even if the motion could be construed as one seeking clarification of Judge Hobbs’ April 3 Order, Defendants have not shown that clarification is necessary. The April 3 Order ruling does not conflict with Judge Madden’s March 6 Order, which unambiguously vacated the prior trial date, the discovery cut-off date, and the date to designate expert witnesses and to conduct expert witness discovery so that Defendants could address Plaintiffs’ newly-presented evidence. If Defendants believed that Judge Madden exceeded his authority by reopening discovery sua sponte, their avenue for relief was to pursue a motion for reconsideration or to seek a writ of mandate from the Court of Appeal.

Accordingly, the motion for clarification is DENIED and the Court proceeds to address Defendants’ request for a protective order. Defendants state that they are willing to waive further discovery for a protective order preventing Plaintiff from conducting additional discovery. A protective order is not necessary because discovery has not been reopened for Plaintiffs; therefore, Plaintiffs’ discovery is not permitted and any motion to compel responses to them would be meritless and subject to sanctions unless Plaintiffs file (and the Court grants) a motion to reopen discovery which requires a showing of diligence and an explanation of why the proposed discovery was not completed earlier.

Hon. William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at alhdept3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.