Judge William A. Crowfoot, Case Number: EC066608, Date: 2024-12-09 Tentative Ruling

On September 6, 2024, Angeles Contractor, Inc. (“Angeles”) filed this motion to reopen trial to allow testimony from three witnesses. The motion was originally scheduled to be heard on October 15, 2024. On October 2, 2024, KCB Towers, Inc. (“KCB”) filed an opposition brief and evidentiary objections. On October 8, 2024, Angeles filed its reply brief. On the afternoon of October 11, 2024, Angeles filed a Supplemental Declaration of John Paul Cosico. Angeles did not explain why this declaration could not be filed along with its reply brief. On October 14, 2024, the following Monday, Angeles filed a request for judicial notice. KCB filed objections to all these late-filed documents on October 14, 2024. Due to these late-filed documents, the Court continued the hearing from October 15, 2024, to October 21, 2024.

At the hearing on October 21, 2024, the Court heard oral argument and continued the hearing to December 9, 2024. The Court permitted the parties to submit supplemental briefs not to exceed 5 pages and ordered them to lodge a transcript of the hearing. The parties stipulated to a briefing schedule and filed their supplemental briefs simultaneously on November 19, 2024. On December 6, 2024, KCB filed evidentiary objections to the declarations of John Paul Cosico, James Potts, and William Syrkin.

In its motion, Angeles argues that trial should be reopened so that three witnesses may testify: (1) Daniel Martinez (“Martinez”), (2) Robert Roginson (“Roginson”), and Robert Lucas (“Lucas”). Angeles contends that these three witnesses’ testimony would (1) rebut the testimony of KCB’s expert, Philip Vermeulen (“Vermeulen”), on the issue of licensure, and (2) substantiate Angeles’s claims for compensation related to corrective work performed by Genisa Iron, Inc. (“Genisa”).

Trial courts have broad discretion in deciding whether to reopen the evidence. (Horning v. Shilberg (2005) 130 Cal.App.4th 197, 208.) “A motion to reopen a case for further evidence can be granted only on a showing of good cause. (Ensher, Alexander & Barsoom, Inc. v. Ensher (1964) 225 Cal.App.2d 318, 326.) A motion to reopen a case for the purpose of introducing further evidence must be made on affidavit stating what the moving party expects to prove, the character of the evidence proposed to be introduced, the diligence exercised to introduce the evidence during the trial, and the reasons justifying the failure to offer it at that time. (Westerholm v. 20th Century Ins. Co. (1976) 58 Cal.App.3d 628, 634.) A motion to reopen is subject to a diligence requirement. (Broden v. Marin Humane Society (1999) 70 Cal.App.4th 1212, 1222.)

The Court overrules KCB’s objections to the Declarations of Mark Feldman, Daniel Martinez, Robert Roginson, and Robert Lucas filed on July 25, 2024, the Supplemental Declarations of Mark Feldman and Robert Lucas filed on September 6, 2024, the Supplemental Declarations of John Paul Cosico filed on October 11, 2024, Angeles’s Request for Judicial Notice filed on October 14, 2024, and the Declarations of John Paul Cosico, William Syrkin, and James Potts filed on November 19, 2024. However, as discussed further below, the Court does not find any of the declarations sufficient to establish that Angeles acted with diligence in seeking to reopen the trial.

As a threshold matter, the Court must consider whether Angeles acted diligently in making its request to reopen trial and introduce evidence from Martinez, Roginson, and Lucas. Angeles claims it acted with diligence because it objected to the Court’s proposed statement of decision, issued on June 14, 2024, and filed declarations from the proposed witnesses prior to a status conference scheduled on July 26, 2024. (Motion, p. 6.) Although trial concluded on October 18, 2023, Angeles argues that it first realized that the Court relied on KCB’s expert, Vermeulen, and that Angeles should have been given an opportunity to present a rebuttal to Vermeulen’s testimony regarding KCB’s licensure when Angeles received the proposed statement of decision. Angeles emphasizes that Vermeulen’s testimony was incorrect and prejudicial because it was introduced at the last minute. In addition, Angeles claims it came to the realization that it should have had an opportunity to explain Genisa’s Time and Material (“T&M”) tickets, which would have “explained to the Court why Angeles was entitled to an award of compensation related to Genisa’s corrective work.” (Motion, p. 6.) Angeles further states that it recently discovered evidence that KCB had a lapse in workers’ compensation coverage and was therefore unlicensed during the project and unable to collect compensation. (Motion, p. 6.)

In opposition, KCB persuasively argues that Angeles did not act diligently in making this motion. KCB points out that although trial concluded on October 18, 2023, the trial transcripts were available by November 2023 and Angeles had opportunities to review them while preparing its closing arguments brief, which was submitted on February 9, 2024. Additionally, Angeles submitted a reply in support of its closing arguments on March 24, 2024, and submitted a proposed statement of decision on May 15, 2024. Despite having these opportunities to review the transcript and prepare multiple briefs, Angeles apparently never considered that its presentation of evidence was inadequate until six months after the conclusion of trial when the Court issued its proposed statement of decision. (Horning, supra, 130 Cal.App.4th at p. 209 [no abuse of discretion denying motion to reopen trial brought nearly six months after the close of evidence].) Accordingly, the Court denies the motion on the grounds that Angeles did not act with diligence.

But even if Angeles had timely moved to reopen trial, Angeles does not provide any reasonable justification for failing to introduce at trial the evidence it now seeks to present. A failure to introduce evidence due to a “knowing and voluntary tactical decision” is not grounds to reopen trial. (Horning, supra, 130 Cal.App.4th 197; Rosenfeld, Meyer & Susman v. Cohen (1987) 191 Cal.App.3d 1035, 1052-53.)

Angeles claims that it was unable to introduce evidence from witnesses about KCB’s licensure because KCB’s expert, Vermeulen, was never disclosed as a witness until the day before he was called to testify and was allowed to testify thirty minutes before the trial ended. (Motion, p. 8.) However, Angeles did not, at any point, object or ask for the ability to present evidence to rebut Vermeulen’s testimony. (Opp., p. 6.)

Also, Angeles claims it could not provide Mr. Martinez’s testimony to explain the work completed by Genisa because of a purported “hard-stop” date; but there was no such date. (Opp., p. 6.) Instead, the purported “hard stop” was due to the possibility of an interruption due to congestion of the Court’s trial calendar. (KCB Supp. Brief, Ex. A, 10/21/2024 Transcript, 7:11-8:5.) KCB also points out that Angeles chose to present a witness who was not previously on its witness list, John Wilson, further demonstrating that Angeles’ failure to present a rebuttal expert to Mr. Vermeulen, or Mr. Martinez’s testimony, was a tactical decision. (Opp., p. 6.)

Last, the Court rejects Angeles’ contention that trial should be reopened because Angeles discovered “new facts” regarding KCB’s licensure after the proposed statement of decision was issued. The only case Angeles relies on, Marriage of Olson (1980) 27 Cal.3d 414, is inapposite because it involved facts which had changed after the decision was announced and a statute which required the court to valuate community assets and liability “as near as practicable to the time of trial.” (Id., pp. 419. 422.) Here, the alleged gap in licensure occurred around the end of February of 2017, three months before this action was filed. Angeles even admits in its moving papers that the CSLB website “currently shows that KCB had a gap in its workers compensation history.” (Motion, pp. 14-15.) Yet, Angeles fails to explain why any “recently-discovered” evidence about KCB’s purported licensing issues could not have been discovered before trial even though Angeles purportedly had “the licensure issue front and center, since [it] answered [KCB’s] complaint.” (Motion, pp. 10-11.) Instead, Angeles apparently only discovered after trial that KCB had a one-day lapse in its workers’ compensation coverage and the certified license history produced by KCB during trial that did not reflect this lapse. (10/11/2024 Cosico Decl., ¶ 2.) Specifically, Angeles received a copy of the CSLB’s “complete files” for KCB on August 14, 2024, and Angeles’s counsel, in his review of these files, discovered that KCB’s insurance (provided by BBSI) was terminated on February 28, 2017, at 12:01 a.m. and that the replacement insurance policy was not effective until March 1, 2017, at 12:01 a.m. (Supp. Feldman Decl., ¶ 5.) There is no explanation for why the CSLB’s files could not have been obtained and reviewed earlier or, even why the dates of coverage, which were available on the CSLB’s website, were not examined. (Supp. Feldman Decl., Ex. 7.) Even at the hearing on October 21, 2024, the Court asked Angeles’s counsel, Mark A. Feldman, why the issue of workers’ compensation coverage was not “flushed out during discovery.” Mr. Feldman stated, “That, I don’t have any answer for, except that I did ask for documents in discovery, and there were new documents that were produced at the trial that had never been seen before.” (KCB Supp. Brief, Ex. A, 14:22-27.) However, Angeles never specifies which documents were requested from KCB, and whether new documents produced at trial were part of those which were requested (and therefore improperly withheld).

Ultimately, Angeles does not sufficiently explain why the issue of the lapse in coverage could not have been determined sooner and raised at trial. Angeles’ supplemental brief refers to workers’ compensation policies that were introduced as exhibits at trial, and therefore, the information about this gap in licensure was available during trial. (Angeles Supp. Brief 11/19/2024, 4:2-3, 9-10.) The fact that Angeles did not realize the importance of this information until after it received the proposed statement of decision and conducted a postmortem examination of its trial strategy does not demonstrate diligence and, therefore, the Court exercises its discretion to deny the motion to reopen trial.

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.