On 11/28/2016 SHAHIN MELAMED filed a Property - Other Real Property lawsuit against LEON DAVID FRANCO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
FRANCO LEON DAVID
DOES 1 THROUGH 60
FRANCO LEON D.
ROSTAMIAN CLAUDE A. ESQ.
SAFARIAN AROUTUN HARRY
NOH JONATHAN D.
3/27/2018: SUBSTITUTION OF ATTORNEY
6/22/2018: NOTICE RE; CONTINUANCE OF HEARING
6/22/2018: NOTICE RE; CONTINUANCE OF HEARING
12/11/2018: Minute Order
12/11/2018: Ex Parte Application
1/15/2019: Minute Order
2/24/2017: NOTICE OF CHANGE OF ADDRESS OF ATTORNEY FOR PLAINTIFF
3/8/2017: Minute Order
4/5/2017: FIRST AMENDED COMPLAINT FOR: 1. WILLFUL TRESPASS (REMOVAL OF ENCROACHING STRUCTURE), ETC
5/11/2017: ANSWER OF DEFENDANT LEON DAVID FRANCO TO PLAINTIFF'S UNVERIFIED COMPLAINT
7/19/2017: NOTICE OF CHANGE OF ADDRESS AND FIRM NAME
9/5/2017: Minute Order
10/4/2017: STIPULATION TO CONTINUE TRIAL AND PRETRIAL DATES
at 08:30 AM in Department 37; Conference (Post-Mandatory Settlement Conference) - HeldRead MoreRead Less
Minute Order ( (Conference Post-Mandatory Settlement Conference)); Filed by ClerkRead MoreRead Less
at 10:00 AM in Department 37; Jury Trial - Not Held - Advanced and Continued - by CourtRead MoreRead Less
at 08:30 AM in Department 37; Jury Trial - Not Held - Clerical ErrorRead MoreRead Less
Notice of Case Reassignment and Order for Plaintiff to Give Notice; Filed by ClerkRead MoreRead Less
Objection (To Court's Minute Order, dated January 15, 2019); Filed by Shahin Melamed (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 37; Final Status Conference - Not Held - Continued - Court's MotionRead MoreRead Less
Minute Order ((Final Status Conference)); Filed by ClerkRead MoreRead Less
Substitution of Attorney; Filed by Mainak D'Attaray (Attorney)Read MoreRead Less
Notice (of Order Granting Plaintiff Shahin Melamed's Ex Parte Application for Leave to Designate Expert Witnesses Fourteen Days Late); Filed by Shahin Melamed (Plaintiff)Read MoreRead Less
CIVIL DEPOSITRead MoreRead Less
NOTICE OF SETTING OF CASE MANAGEMET CONFERENCERead MoreRead Less
NOTICE OF PAYMENT OF INITIAL DEPOSIT FOR JURY FEESRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Motion to Strike; Filed by Leon David Franco (Defendant)Read MoreRead Less
DEFENDANT LEON DAVID FRANCO'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' COMPLA1NT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORTRead MoreRead Less
Complaint; Filed by Shahin Melamed (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
COMPLAINT FOR: 1. WILLFUL TRESPASS (REMOVAL OF ENCROACHING STRUCTURE) ;ETCRead MoreRead Less
Case Number: BC642017 Hearing Date: August 19, 2020 Dept: 37
HEARING DATE: August 19, 2020
CASE NUMBER: BC642017
CASE NAME: Shahin Melamed v. Leon David Franco
MOVING PARTY: Plaintiff Shahin Melamed
OPPOSING PARTY: Defendant Leon David Franco
TRIAL DATE: August 17, 2021
PROOF OF SERVICE: OK
MOTION: Motion to Extend Discovery Cut-Off Date
OPPOSITION: None as of August 17, 2020
REPLY: No opposition filed.
TENTATIVE: Defendant’s motion to reopen expert witness discovery is GRANTED. The court continues the discovery cutoff date for expert discovery by all parties to February 28, 2011. The court likewise continues the final date for discovery motions related to that discovery to March 31, 2011. Defendant is to give notice.
This action arises in connection with a property dispute between Plaintiff, Shahin Melamed (“Plaintiff”) and Defendant, Leon David Franco (“Defendant”). Plaintiff alleges that he is the owner of undeveloped land located at lots 377 and 378 of tract number 1450 in the City of Los Angeles, California. Lots 377 and 378 were legally joined as one parcel on or about January 2, 2009. (hereinafter “Lot 378”). In addition, Plaintiff alleges that he also owns undeveloped land located at lot 422, tract number 1450, assessor’s property number (“APN”) 2424-027-028. Defendant allegedly owns lot 379 of tract number 1450 in the City of Los Angeles, California, which is separated from Lot 378 by an undeveloped walk (“Walk”) that belongs to the city of Los Angeles. Plaintiff’s operative Complaint alleges that sometime after February 2015, Defendant entered Lot 378, removed a substantial amount of earth without Plaintiff’s permission and built a structure, all of which allegedly causes Plaintiff’s land to be unstable.
Plaintiff’s operative Complaint, filed November 28, 2016, alleges the following causes of action: (1) willful trespass and permanent injunction, (2) negligent trespass and permanent injunction, (3) abatement of private nuisance.
On March 8, 2017, trial was set for November 7, 2017. On April 5, 2017, Plaintiff filed his first amended Complaint. On October 4, 2017, trial was continued to May 5, 2018 pursuant to the parties’ stipulation.
On April 30, 2018, Defendant’s ex parte to continue trial was granted. The May 5, 2018 trial date was vacated, and the parties were ordered to meet and confer so that a discovery plan could be determined at the June 1, 2018 case management conference.
On July 24, 2018, the court reset trial for January 22, 2019. All discovery was to be completed by September 28, 2018, and the court specifically indicated that no further continuances would be granted.
On December 4, 2018, Plaintiff’ prior counsel Michael Stoller provided notice to the court that he had been suspended from the practice of law in California for one hundred eighty (180) days, effective October 26, 2018. Plaintiff then brought an ex parte to continue trial, which was denied on December 11, 2018. Plaintiff then brought an ex parte for leave to designate expert witnesses late. The court granted Plaintiff’s ex parte for leave to designate experts, but specifically allowed Plaintiff to designate three experts and required Plaintiff immediately make them available for deposition.
On December 17, 2018, Plaintiff’s current counsel Mainak D’Attaray (“D’Attaray”) filed a Substitution of Attorney.
On January 15, 2019, the court continued the trial in this matter to September 24, 2019 pursuant to the request of Plaintiff
On September 11, 2019, the court granted Defendant’s motion to continue trial only as to the requested trial dates. The court’s ruling indicated that a separate motion would be required to continue the discovery cut-off date.
On November 25, 2019, Defendant again moved ex parte to continue trial. The court granted Defendant’s ex parte application but also specifically did not continue the discovery cut-off, noting that “discovery remains closed.” The parties were to meet and confer regarding pretrial documents prior to the January 21, 2020 trial date.
On January 24, 2020, the court vacated the trial date, noting that the parties had not filed the appropriate pre trail documents. Trial was re-set for May 19, 2020. The court also denied Plaintiff’s Ex Parte Application for Leave to Complete Expert Discovery Past Cutoff Date or, Alternatively, for an Order Shortening Time on the Requested Relief, deeming it untimely.
On March 11, 2020, Defendant filed the instant Motion for Leave to Complete Discovery Past the Cutoff Date. On March 16, 2020, the court granted Defendant’s ex parte application for order shortening time on this motion, setting the hearing to April 10, 2020. The hearing on this motion was eventually continued to August 19, 2020 on the court’s motion due to the current circumstances including, but not limited to, the spread of COVID-19. Plaintiff has not filed an opposition.
Meet and Confer Efforts
A motion for leave to reopen discovery “shall be accompanied by a meet and confer declaration.” (Code Civ. Proc., § 2024.050, subd. (a).) The declaration must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented in the motion. (Code Civ. Proc., § 2016.040.) “[A] reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel…. Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294.) “A determination of whether an attempt at informal resolution is adequate involves the exercise of discretion.” (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016, internal ellipses omitted.) Where a party fails to make any real effort at informal resolution, a particularly egregious failure may justify an immediate and outright denial of further discovery. (Obregon v. Sup. Ct. (1998) 67 Cal.App.4th 424, 433-34, citing Townsend v. Sup. Ct. (1998) 61 Cal.App.4th 1431, 1437.)
Defendant submits the declaration of his attorney, Harry A. Safarian (“Safarian”) in support of this motion.
First, Safarian attests that he was engaged in trials in Los Angeles and Orange Counties on various dates March 2019 through August 27, 2019. (Safarian Decl. ¶ 5.) According to Safarian, Plaintiff noticed his 3 engineering experts’ depositions for September 3-5, 2019, dates on which he was not available. (Safarian Decl. ¶ 6.) However, Safarian attests that he informed Plaintiff’s counsel he would make the experts available at another time and would seek a trial continuance, to which Plaintiff’s counsel allegedly agreed. (Safarian Decl. ¶7.)
Second, Safarian attests that his various trials through September and October 2019 had to be continued due to his illness in September through November 2019, which required hospitalization. (Safarian Decl. ¶¶ 8-9.)
According to Safarian, he contacted Plaintiff’s counsel on December 2, 2019 with the goal of acquiring Plaintiff’s counsel’s consent to reopening the discovery cut-off. (Safarian Decl. ¶ 10, Exhibit B.) On December 13, 2019, Safarian again contacted Plaintiff’s counsel to follow-up. (Safarian Decl. ¶ 11, Exhibit C.) Further, Safarian attests he was again involved in trial on December 16, 2019, and that this proceeding lasted through January 23, 2020. (Safarian Decl. ¶ 13.)
On December 23, 2019, Safarian attests that he made another series of attempts to meet and confer with Plaintiff’s counsel about trial documents and expert depositions and that he did not obtain agreement from Plaintiff’s counsel. (Safarian Decl. ¶¶ 14-17, Exhibits E-H.) Further, Plaintiff’s counsel has allegedly repeatedly failed to make his own experts available for deposition since Defendant’s deposition notices of October 28, 2019. (Safarian Decl. ¶ 18, Exhibit A.)
Finally, Safarian attests that he again made Defendants’ experts available for deposition on February 25, 2020 and that as of the filing of this motion he has not received a reply. (Safarian Decl. ¶ 20, Exhibit I.)
The court finds that the Safarian Declaration is sufficient for purposes of Code of Civil Procedure, section 2024.050.
I. Legal Standard
Pursuant to Code of Civil Procedure, section 2024.020, parties are entitled as a matter of right to complete discovery proceedings on or before the 30th day before the initial date of trial and to have motions concerning discovery heard on or before the 15th day. (Code Civ. Proc., § 2024.020, subd. (a).) A continuance or postponement of the trial date does not reopen discovery proceedings absent a motion under section 2024.050. (Id. at § 2024.020, subd. (b).)
Section 2024.050 provides the means by which a party may move to have discovery reopened after a new trial date has been set. (Code Civ. Proc., § 2024.050, subd. (a).)
(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.
(Code Civ. Proc., § 2024.050, subd. (b).)
II. Necessity and Reasons for the Discovery, Diligence in Seeking Discovery
As discussed above, discovery in this matter has remained closed since September 9, 2019. At that point, the court stated there would be no further extensions.
Defendant argues that good cause exists to reopen discovery because he and his counsel have been diligent in seeking discovery. (Motion, 2-5.) Further, Defendant’s counsel Safarian has attested that he was ill on many occasions from September through November 2019, requiring hospitalization. Safarian has also attested that he has met and conferred with Plaintiff’s counsel on numerous occasions regarding conducting expert discovery and that Plaintiff did not respond to these requests. Defendant also argues that there will be no prejudice in allowing the discovery because there is time before trial for expert discovery to be completed. (Motion, 6.)
Plaintiff has not filed an opposition to this motion.
On August 3, 2020, the court continued trial in this matter until August 17, 2021 based on current circumstances, including, but not limited to, the spread of COVID-19.
As reflected in the order that there would be no further extensions, there are considerable questions regarding the diligence in pursuing this discovery. On the hand, defense counsel had some significant medical issues in 2019 and some competing trials, but that, in and of itself is not sufficient to show Defendant was diligent. However, there are experts for both sides and expert discovery has not been conducted. Trial will undoubtedly be more efficient if the discovery is completed. There is now a long delay before the trial, which mitigates in favor of allowing the discovery.
III. The Likelihood that Permitting the Discovery Will Prevent the Case from Going to Trial on the Date Set, Prejudice, and the Length of Time Between the Date Previously Set for Trial and the Current Trial Date
Defendant contends that allowing additional time to complete expert discovery will not prevent the case from going to trial or otherwise prejudice Plaintiff.
Trial in this matter is scheduled for August 17, 2021. Given this, court agrees that Plaintiff will not be prejudiced by continuing the expert discovery cutoff.
The final factor is 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, subd. (b)(4).) Trial was previously set on November 7, 2017 and was continued numerous times pursuant to ex parte applications. However, the parties do not raise arguments concerning this factor and the court therefore does not find that it weighs for or against continuing the discovery cutoff date.
Defendant’s motion to reopen expert witness discovery is GRANTED. The court continues the discovery cutoff date for expert discovery by all parties to February 28, 2011. The court likewise continues the final date for discovery motions related to that discovery to March 31, 2011. Defendant is to give notice.
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