Tentative Rulings

Case Number: BC635516    Hearing Date: July 13, 2020    Dept: 37

HEARING DATE: July 13, 2020

CASE NUMBER: BC635516

CASE NAME: Brad Waisbren, et al. v. Heger Industrial, et al.

MOVING PARTY: Plaintiffs, Brad Waisbren and Marci Higer

OPPOSING PARTY: Defendants, Heger Industrial, et al.

TRIAL DATE: November 17, 2020

PROOF OF SERVICE: OK

MOTION: Plaintiffs, Brad Waisbren and Marci Higer’s Motion for Reconsideration of the January 31, 2020 Ruling on Plaintiffs’ Motion to Reopen Discovery

OPPOSITION: None as of July 8, 2020

REPLY: No opposition filed.

TENTATIVE: Plaintiffs’ Motion for Reconsideration is DENIED. Heger Defendants are to give notice.

Background

This action arises out of a landlord-tenant dispute. Plaintiffs Brad Waisbren (“Waisbren”) and Marci Higer (“Higer”) allege that they were tenants of premises located at 15132 Downey Avenue, Paramount, California, which they used to store hundreds of thousands of items of personal property. Plaintiffs allege that in May 2015, Defendants Heger Realty Corporation (dba and erroneously sued as Heger Industrial) (“Heger”), Robert G. Thornburgh (“Thornburgh”), Thomas Holland (“Holland”) and Bobbi Morrison (“Morrison”) filed an unlawful detainer proceeding against Plaintiffs, induced Plaintiffs to enter into a stipulation for entry of judgment, and ultimately caused Plaintiffs to lose certain items of personal property stored at the premises.

On May 2, 2019, the court granted Plaintiffs’ motion for leave to amend and file the SAC. The SAC adds Elliot Solomon, Investment Properties Services, Inc. (“IPS Inc.”), and Landlord Services as Defendants. Plaintiff assert the first through third, fifth through eighth, eleventh, and twelfth causes of action against all Defendants and to assert the fourth, ninth, and tenth causes of action against Victor Solomon, Elliot Solomon; IPS; IPS, Inc.; and Landlord Services.

On January 31, 2020 the court granted Plaintiff’s motion to reopen discovery in part, as follows:

The Plaintiff may conduct individual depositions or deposition of the Person Most Knowledge for the above mentioned Defendants [i.e., Investment Property Services Inc., Scott Dorsey, Victor Solomon and Paramount Industrial Park]. One deposition for each of the above named defendants, with a time limit of seven hours per deposition.

The Plaintiff may send form interrogatories, to each of the above named defendants.

Discovery responses must be completed by June 30, 2020.

On February 10, 2020 Plaintiffs filed the instant motion for reconsideration of the court’s January 31, 2020 ruling. No opposition to has been filed.

Request for Judicial Notice

Plaintiffs request that the court take judicial notice of the following documents attached as exhibits to the request:

1. Notice of Ruling on Plaintiffs’ Motion to Reopen Discovery

2. Notice of Motion and Motion to Continue Trial and Hearing on Motion for Summary Judgment

3. Notice of Ruling regarding Ex Parte Application to Specially Set and/or Shorten Time on Hearing for Motion to Continue Trial and Hearing on Motion for Summary Judgment

Plaintiffs’ request is granted. The existence and legal significance of these documents are proper matters for judicial notice. (Evidence Code § 452, subds. (d), (h).)

Reconsideration

1. Timeliness

Code of Civil Procedure, section 1008 allows a party to move for reconsideration of an order within 10 days after service upon the party of written notice of entry of the order, based on new or different facts, circumstances, or law. (Code Civ. Proc., § 1008, subd. (a).)

Plaintiff served notice of the court’s January 31, 2020 ruling on February 1, 2020 by U.S. mail. Plaintiff filed the instant motion on February 10, 2020. Accordingly, Plaintiff’s motion for reconsideration is timely. (See Code Civ. Proc., § 1008, subd. (a).)

1. Analysis

Code of Civil Procedure section 1008 requires the party moving for reconsideration to “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.”

Plaintiffs contend that reconsideration of the January 31, 2020 ruling is warranted because “it became clear” after this hearing and after review of the Heger Defendants opposing papers that the Heger Defendants “argued inconsistent positions” on Plaintiff’s Motion to Reopen Discovery and their August 2018 Motion to Continue Trial. (see Notice of Motion, 2.) Plaintiffs submit their own declarations in support of this motion.

Plaintiff Waisbren attests that “it was an inadvertent mistake” that he did not “include the Heger Defendants’ Motion to Continue Trial” in his motion to reopen discovery. (Wasibren Decl. ¶ 8.) Further, according to Plaintiff Waisbren, he “discovered” upon review of the Heger 2018 motion that the Heger Defendants previously argued that they would not have enough time to complete discovery and that at the time, the Heger Defendants were not sufficiently prepared to proceed to trial. (Waisbren Decl. ¶ 10.) Further, Plaintiff Waisbren attests that the Heger Defendants “made an entirely opposite argument” in opposition to his motion. (Waisbren Decl. ¶ 13.)

Plaintiff Higer similarly attests that upon review of the 2018 Heger motion to continue trial, she “discovered” that the Heger Defendants had previously argued for more time to complete discovery. (Higer Decl. ¶¶ 8-12.)

No opposition has been filed to the instant motion.

Plaintiffs’ motion turns on arguments made by the Heger Defendants in an August 2018 motion that was available to Plaintiffs at all times since August 2018. Those arguments cannot be new matter discovered by the Plaintiffs and Plaintiffs’ motion fails to set forth new facts for purposes of Code of Civil Procedure, section 1008.[1]

Plaintiff’s motion for reconsideration is DENIED.

Conclusion

Plaintiffs’ Motion for Reconsideration is DENIED. Heger Defendants are to give notice.

Case Number: BC635516    Hearing Date: January 31, 2020    Dept: 37

HEARING DATE: January 31, 2020

CASE NUMBER: BC635516

CASE NAME: Brad Waisbren, an individual, et al. v. Heger Industrial, a business entity, form unknown, et al.

MOVING PARTY: Plaintiffs, Brad Waisbren and Marci Higer

RESPONDING PARTY: Defendants, Heger Industrial, Heger Realty Corporation, Thomas Holland and Paramount Industrial Park

TRIAL DATE: November 17, 2020

PROOF OF SERVICE: OK

MOTION: Motion to Reopen Discovery After New Trial Date

OPPOSITION: January 15, 2020 (Paramount Industrial Park), January 17, 2020 (Heger Industrial, Heger Realty and Thomas Holland)

REPLY: January 24, 2020

TENTATIVE: Plaintiffs’ Motion to Reopen Discovery is DENIED. Heger Defendants are to provide notice.

Background

This action arises out of a landlord-tenant dispute that has been summarized in numerous prior orders

By its case management order filed January 12, 2017, this case was set for trial was October 22, 2018, and thereafter discovery was cutoff pursuant to CCP section 2024.020.

Plaintiffs now move for an order reopening discovery pursuant to Code of Civil Procedure, section 2024.050. The Heger Defendants and Paramount Defendants both oppose the motion.

Discussion

1. Legal Standard

Any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial. (Code Civ. Proc., § 2024.020(a).) 

On motion of any party, the court may allow discovery proceedings to be completed or a discovery motion to be heard after the “cutoff” above.¿ Alternatively, it may reopen discovery after the trial has been continued to a new date.¿ (Code Civ. Proc., § 2024.050(a); see Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588.) “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.”  (Code Civ. Proc., § 2024.050, subd. (a).) 

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. 

(Code Civ. Proc., § 2024.050(b).)  The court shall impose sanctions pursuant to Chapter 7 (commencing with Section 2023.010) on the party who unsuccessfully makes or opposes this motion for leave, unless the party acted with substantial justification.¿ (Code Civ. Proc., § 2024.050(c).

1. Analysis

As indicated above the first date set for trial was October 22, 2018.

Accordingly, based on an October 22, 2018 trial date, the original discovery cut-off would have been September 22, 2018. Thereafter, the October 22, 2018 trial date was vacated, but no orders were issued vacating the discovery cutoff.

Upon a review of the docket, the court finds no evidence that the trial date was re-set until June, 2019, at which time it was set for November 17, 2020. Further, although Plaintiffs contend that the Court alleged instructed one or both of them to file a motion to reopen the trial date in “August 2019,” the Court really refused to entertain an oral motion to reopen discovery and indicated that a notice motion would be required for the court to consider the issue.

Plaintiffs also submit their own declarations in support of the instant motion. Plaintiff Brad Waisbren (“Waisbren”) attests that he was instructed by the Court to file a Motion to Reopen Discovery. (Waisbren Decl. ¶ 8.) Waisbren attests that he has exchanged “some discovery” with the Heger Defendants. (Waisbren Decl. ¶ 11.) He further attests that he would like to serve written discovery, taken depositions, and serve subpoenas on “all Defendants” as well as to “third parties.” (Waisbren Decl. ¶ 12.) Further, Weisbren contends that the added Doe Defendants “came too late for me to conduct proper discovery prior to the vacated trial schedule.” (Waisbren Decl. ¶ 23.) Plaintiff Marci Higer makes almost identical contentions in her declarations. Further, both plaintiffs contend that they spoke to counsel for defendants “on several occasions” and that counsel for defendants indicated that they would stipulate to reopen discovery. (see Marci Higer Decl. ¶ ¶ 28-29.)

The Paramount Defendants contend that Plaintiff’s motion should be denied because they have provided no explanation for why discovery should be re-opened and have shown no diligence in prosecuting this action. (Paramount Opposition, 4-6.)

Similarly, the Heger Defendants contend that Plaintiffs’ motion should be denied because they have failed to provide a sufficient explanation for why discovery should be re-opened. (Heger Opposition, 2-4.) The Heger Defendants contend that the Plaintiffs did not serve notices of deposition prior to expiration of the discovery cut-off date and did not serve any discovery on the newly added defendants until the expiration of the discovery cut-off date. (Opposition, 3.)

All the Doe defendants were added before or by May 2018. Thus, Plaintiffs had time to conduct discovery before the cutoff. Plaintiffs’ now argue that discovery should be re-opened because that would allegedly benefit both parties and that more discovery is necessary for Plaintiffs to prepare their case against the recently added Doe defendants. However, both the Paramount Defendants and Heger Defendants oppose reopening discovery, so they apparently believe that reopening discovery would not be beneficial to them. Further, Plaintiffs were the parties who decided to name new Doe defendants close to the original trial date and, as such, should have planned to obtain discovery from them in a timely fashion, if at all. Accordingly, none of Plaintiffs’ contentions provide sufficient grounds for the Court to reopen discovery.

The court agrees with Defendants and denies Plaintiffs’ motion. Plaintiffs’ motion to reopen discovery is DENIED.