This case was last updated from Los Angeles County Superior Courts on 10/07/2020 at 11:10:36 (UTC).

DIANA GAVILANES VS BELLFLOWER UNIFIED SCHOOL DISTRICT

Case Summary

On 01/04/2018 DIANA GAVILANES filed a Labor - Wrongful Termination lawsuit against BELLFLOWER UNIFIED SCHOOL DISTRICT. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are RICHARD FRUIN, ROBERT L. HESS, PATRICIA D. NIETO, ERNEST HIROSHIGE, RICHARD L. FRUIN, ERNEST M. HIROSHIGE, ANTHONY MOHR and SAMANTHA JESSNER. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8975

  • Filing Date:

    01/04/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Wrongful Termination

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

RICHARD FRUIN

ROBERT L. HESS

PATRICIA D. NIETO

ERNEST HIROSHIGE

RICHARD L. FRUIN

ERNEST M. HIROSHIGE

ANTHONY MOHR

SAMANTHA JESSNER

 

Party Details

Petitioner and Plaintiff

GAVILANES DIANA

Defendants and Respondents

DOES 1 TO 100

BELLFLOWER UNIFIED SCHOOL DISTRICT

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

GEORGE VICTOR L. ESQ.

GEORGE VICTOR LIGHT ESQ.

Defendant and Respondent Attorneys

ROCHE ROBERT J. ESQ.

ROCHE ROBERT J.

 

Court Documents

COMPLAINT FOR DAMAGES 1. DISCRIMINATION IN VIOLATION OFFEHA, CALIFORNIA GOVERNMENT CODE 12900, - ET SEQ.: A. PHYSICAL DISABILITY B. GENDER C. NATIONAL ORIGIN ;ETC

1/4/2018: COMPLAINT FOR DAMAGES 1. DISCRIMINATION IN VIOLATION OFFEHA, CALIFORNIA GOVERNMENT CODE 12900, - ET SEQ.: A. PHYSICAL DISABILITY B. GENDER C. NATIONAL ORIGIN ;ETC

Declaration - DECLARATION OF WAYNE C. SMITH IN SUPPORT OF MOTION TO REOPEN DISCOVERY FOR THE PURPOSE OF DEPOSING FORMER BUSD EMPLOYEE, BRYAN KENNEBREW

9/21/2020: Declaration - DECLARATION OF WAYNE C. SMITH IN SUPPORT OF MOTION TO REOPEN DISCOVERY FOR THE PURPOSE OF DEPOSING FORMER BUSD EMPLOYEE, BRYAN KENNEBREW

Motion re: - MOTION RE: MOTION TO REOPEN DISCOVERY FOR THE PURPOSE OF DEPOSING FORMER BUSD EMPLOYEE, BRYAN KENNEBREW

9/21/2020: Motion re: - MOTION RE: MOTION TO REOPEN DISCOVERY FOR THE PURPOSE OF DEPOSING FORMER BUSD EMPLOYEE, BRYAN KENNEBREW

Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER TO STAY DEPOSITION OF BRYAN KENNEBR...)

9/11/2020: Minute Order - MINUTE ORDER (HEARING ON MOTION - OTHER TO STAY DEPOSITION OF BRYAN KENNEBR...)

Notice - NOTICE OF ERRATA TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND TO QUASH THE DEPOSITION NOTICE AND SUBPOENA

9/3/2020: Notice - NOTICE OF ERRATA TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND TO QUASH THE DEPOSITION NOTICE AND SUBPOENA

Objection - OBJECTION TO DECLARATION OF WAYNE SMITH

9/3/2020: Objection - OBJECTION TO DECLARATION OF WAYNE SMITH

Reply - REPLY TO PLAINTIFF'S OPPOSITION TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

9/3/2020: Reply - REPLY TO PLAINTIFF'S OPPOSITION TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

Declaration - DECLARATION OF ROBERT J. ROCHE IN SUPPORT OF DEFENDANT BELLFLOWER UNIFIED SCHOOL DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSIT

9/3/2020: Declaration - DECLARATION OF ROBERT J. ROCHE IN SUPPORT OF DEFENDANT BELLFLOWER UNIFIED SCHOOL DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSIT

Declaration - DECLARATION OF WAYNE C. SMITH IN SUPPORT OF OPPOSITION TO MOTION TO STAY THE DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

8/28/2020: Declaration - DECLARATION OF WAYNE C. SMITH IN SUPPORT OF OPPOSITION TO MOTION TO STAY THE DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

Notice - NOTICE OF CASE REASSIGNMENT

8/28/2020: Notice - NOTICE OF CASE REASSIGNMENT

Opposition - OPPOSITION TO MOTION TO STAY THE DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

8/28/2020: Opposition - OPPOSITION TO MOTION TO STAY THE DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

Notice - NOTICE BELLFLOWER UNIFIED SCHOOL DISTRICT'S NOTICE OF RESCHEDULED HEARING ON MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

8/25/2020: Notice - NOTICE BELLFLOWER UNIFIED SCHOOL DISTRICT'S NOTICE OF RESCHEDULED HEARING ON MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

Notice of Case Reassignment and Order for Plaintiff to Give Notice

8/18/2020: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Notice Re: Continuance of Hearing and Order

8/3/2020: Notice Re: Continuance of Hearing and Order

Notice - NOTICE BELLFLOWER UNIFIED SCHOOL DISTRICT'S NOTICE OF RESCHEDULED HEARING ON MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

7/24/2020: Notice - NOTICE BELLFLOWER UNIFIED SCHOOL DISTRICT'S NOTICE OF RESCHEDULED HEARING ON MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA

Notice - NOTICE OF TRIAL SETTING CONFERENCE

7/8/2020: Notice - NOTICE OF TRIAL SETTING CONFERENCE

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 06/29/2020

6/29/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 06/29/2020

Minute Order - MINUTE ORDER (COURT ORDER)

6/29/2020: Minute Order - MINUTE ORDER (COURT ORDER)

167 More Documents Available

 

Docket Entries

  • 01/22/2021
  • Hearing01/22/2021 at 09:15 AM in Department 54 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other Motion to Reopen Discovery for the Purpose of Deposing Former BUSD Employee, Bryan Kennebrew

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  • 12/18/2020
  • Hearing12/18/2020 at 09:00 AM in Department 54 at 111 North Hill Street, Los Angeles, CA 90012; Trial Setting Conference

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  • 09/21/2020
  • DocketDeclaration (of Wayne C. Smith in Support of Motion to Reopen Discovery for the Purpose of Deposing Former BUSD Employee, Bryan Kennebrew); Filed by Diana Gavilanes (Plaintiff)

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  • 09/21/2020
  • DocketMotion re: (Motion to Reopen Discovery for the Purpose of Deposing Former BUSD Employee, Bryan Kennebrew); Filed by Diana Gavilanes (Plaintiff)

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  • 09/11/2020
  • Docketat 09:00 AM in Department 96; Hearing on Motion - Other (TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA (filed wihtout reservation)) - Not Held - Clerical Error

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  • 09/11/2020
  • Docketat 09:00 AM in Department 54, Anthony Mohr, Presiding; Hearing on Motion - Other (TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA (filed wihtout reservation)) - Held - Motion Denied

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  • 09/11/2020
  • DocketMinute Order ( (Hearing on Motion - Other TO STAY DEPOSITION OF BRYAN KENNEBR...)); Filed by Clerk

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  • 09/03/2020
  • DocketReply (TO PLAINTIFF'S OPPOSITION TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSITION OF BRYAN KENNEBREW AND QUASH THE DEPOSITION NOTICE AND SUBPOENA); Filed by Bellflower Unified School District (Defendant)

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  • 09/03/2020
  • DocketDeclaration (OF ROBERT J. ROCHE IN SUPPORT OF DEFENDANT BELLFLOWER UNIFIED SCHOOL DISTRICT'S REPLY TO PLAINTIFF'S OPPOSITION TO BELLFLOWER UNIFIED SCHOOL DISTRICT'S MOTION TO STAY DEPOSITION OF BRIAN KENNEBREW AND QUASH DEPOSITION NOTICE AND SUBPOENA); Filed by Bellflower Unified School District (Defendant)

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  • 09/03/2020
  • DocketObjection (TO DECLARATION OF WAYNE SMITH); Filed by Bellflower Unified School District (Defendant)

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240 More Docket Entries
  • 01/23/2018
  • DocketProof-Service/Summons; Filed by Diana Gavilanes (Plaintiff)

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  • 01/23/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 01/11/2018
  • Docketat 1:30 PM in Department 15; (Affidavit of Prejudice; Case is reassigned) -

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  • 01/11/2018
  • DocketMinute order entered: 2018-01-11 00:00:00; Filed by Clerk

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  • 01/11/2018
  • DocketMinute Order

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  • 01/08/2018
  • DocketDeclaration; Filed by Diana Gavilanes (Plaintiff)

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  • 01/08/2018
  • DocketDECLARATION OF WAYNE C. SMITH RE PEREMPTORY CHALLENGE (CCP 170.6)

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  • 01/04/2018
  • DocketComplaint; Filed by Diana Gavilanes (Plaintiff)

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  • 01/04/2018
  • DocketCOMPLAINT FOR DAMAGES 1. DISCRIMINATION IN VIOLATION OFFEHA, CALIFORNIA GOVERNMENT CODE 12900, - ET SEQ.: A. PHYSICAL DISABILITY B. GENDER C. NATIONAL ORIGIN ;ETC

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  • 01/04/2018
  • DocketSUMMONS

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Complaint Information

Victor L. George, State Bar No. 110504 Wayne C. Smith, State Bar No. 122535

LAW OFFICES OF VICTOR L. GEORGE

20355 Hawthorne Blvd, First Floor

Torrance, California 90503 '

Telephone: (310) 698-0990

Facsimile: (310) 698-0995

E-mail: vgeorge@vgeorgelaw.com wsmith@vgeorgelaw.com

Attorneys for Plaintiff,

DIANA GAVILANES

anem R.o et gxguuve Officen/Clerk y _C_l % S_ “Bnlden Deputy

Superior Court of California

ountv of | ne Annalas ife

JAN 04 2018 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

DIANA GAVILANES, an individual,

Plaintiff,

BELLFLOWER UNIFIED SCHOOL

DISTRICT, a.business, form unknown; and DOES 1 through 100, inclusive,

' Defendants.

" BC68897 COMPLAINT FOR DAMAGES

‘ q A. PHYSICAL DISABILITY B. GENDER C. NATIONAL ORIGIN . VIOLATION OF PUBLIC POLICY; . RETALIATION IN VIOLATION OF

DEMAND FOR JURY TRIAL

: DiSCRIMINATION IN VIOLATION OF FEHA, CALIFORNIA - GOVERNMENT CODE §§12900,

. FAILURE TO ACCOMMODATE.

Plaintiff DIANA GAVILANES, hereby complains and alleges against Defendants,

and each of them, as follows: /1

Tentative Rulings

Case Number: ****8975 Hearing Date: February 28, 2022 Dept: 54

Superior Court of California

County of Los Angeles

Diana Gavilanes,

Plaintiff,

Case No.:

****8975

vs.

Tentative Ruling

Bellflower Unified School District,

Defendant.

Hearing Date: February 28, 2022

Department 54, Judge Maurice A. Leiter

Motion for Summary Judgment, or in the alternative Motion for Summary Adjudication

Moving Party: Defendant Bellflower Unified School District

Responding Party: Plaintiff Diana Gavilanes

T/R: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IS DENIED.

DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION IS DENIED.

DEFENDANT TO NOTICE.

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:30 am on the day of the hearing.

The Court considers the moving papers and opposition.

BACKGROUND

On January 4, 2018, Plaintiff Diana Gavilanes sued her employer Defendant Bellflower Unified School District, alleging four causes of action for (1) FEHA violations (a) physical disability, (b) gender, (c) national origin; (2) violation of public policy; (3) retaliation in violation of FEHA; and (4) failure to accommodate. On May 21, 2018, Judge Hess sustained Defendant’s demurrer to the complaint with leave to amend. On May 31, 2018, Plaintiff filed a first amended complaint, asserting causes of action for (1) discrimination based on disability, gender, and national origin in violation of FEHA; and (2) retaliation in violation of FEHA. On December 6, 2018, this Court sustained Defendant’s demurrer to the causes of action for gender and national origin discrimination in violation of FEHA.

Plaintiff alleges that she worked as a security guard for the District for 23 years. Plaintiff went on medical leave after she injured her right shoulder and neck on March 17, 2015 while breaking up a fight between two students. On February 8, 2016, Plaintiff’s personal physician released her back to work with no restrictions. However, the District would not allow her to return to work until she was released to return to work following a Qualified Medical Exam in her workers’ compensation case.

On July 13, 2016, Plaintiff underwent a QME and was released to return to work with no restrictions. But the District still refused to allow her to return to work, claiming her job description required her to lift 50 pounds over her shoulders. There had never been such a requirement in Plaintiff’s job description. The District fired Plaintiff on September 5, 2017, claiming she did not provide a medical release. Throughout her employment with the District, Plaintiff received praise for her skills and efforts. Plaintiff alleges she was fired because of her perceived physical condition.

ANALYSIS

Defendant moves for summary judgment, or in the alternative, summary adjudication of Plaintiff’s claims. Defendant previously filed a motion for summary judgment on July 24, 2019. The motion was heard on November 15, 2019. On January 2, 2020, the Court issued a written order denying the motion.

CCP 1008(b) provides, “[a] party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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.”

The instant motion is a renewed motion for summary judgment. Defendant does not provide an affidavit stating, “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.” In fact, Defendant fails to address the previous motion and order denying the motion at all. Defendant is not entitled to file a renewed motion because significant time has passed, or because additional discovery may have been conducted. CCP 1008(b) puts an affirmative burden on Defendant to identify what new facts or circumstances exist and why such facts or circumstances would change the Court’s previous order. Defendant has not met this burden.

As a separate and independent ruling, the Court denies the motion on the merits. There remain triable issues of fact regarding pretext and the timeliness of Plaintiff’s claims.

Defendant’s motion for summary judgment, or in the alternative, motion for summary adjudication is DENIED.



Case Number: ****8975    Hearing Date: April 14, 2021    Dept: 54

Superior Court of California

County of Los Angeles

Diana Gavilanes,

Plaintiff,

Case No.:

****8975

vs.

Tentative Ruling

Bellflower Unified School District,

Defendant.

Hearing Date: April 14, 2021

Department 54, Judge Maurice A. Leiter

Motion to Reopen Discovery

Moving Party: Plaintiff Diana Gavilanes

Responding Party: Defendant Bellflower Unified School District

At the March 18, 2021 hearing on this motion, Defendant stated it would waive its objection under CCP ; 2025.620 to the use at trial of the first deposition of Bryan Kennebrew, but Defendant would preserve its evidentiary objections to individual questions and answers in that deposition. The Court continued the motion to permit the parties to memorialize this in writing. The Court has not seen such a writing. The Court re-posts its March 18, 2021 tentative ruling.

* * *

The Court considers the moving papers, opposition and reply.

BACKGROUND

Plaintiff Diana Gavilanes brought this action against her employer Defendant Bellflower Unified School District. The operative complaint alleges she worked as a security guard for the District for 23 years. Plaintiff went on medical leave after she injured her right shoulder and neck while breaking up a fight between two students on March 17, 2015. On February 8, 2016, Plaintiff’s personal physician released her back to work with no restrictions. However, the District would not allow her to return to work until she was released to return to work following a Qualified Medical Exam through her workers’ compensation case. On July 13, 2016, Plaintiff underwent a QME and was released to return to work with no restrictions. Yet the District still refused to allow her to return to work, claiming her job description required her to lift 50 pounds over her shoulders. There had never been such a requirement in Plaintiff’s job description. Ultimately, the District fired Plaintiff on September 5, 2017 claiming she did not provide a medical release. Plaintiff alleges she was fired because of her perceived physical condition.

ANALYSIS

CCP ; 2024.050 provides: 

(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.

Trial initially was set for April 1, 2020, with a discovery cut-off date of March 2, 2020. On February 27, 2020, the parties filed a stipulation to continue the trial and related dates. This stipulation specifically stated that the discovery cut-off would not be continued.

Plaintiff nonetheless served a subpoena on third-party witness Bryan Kennebrew on May 12, 2020 to appear for deposition on May 27, 2020. On May 26, 2020, Defendant filed a motion to quash or stay the deposition of Kennebrew on the ground that discovery was closed. The motion was not heard before the scheduled deposition date (presumably because the Court was largely closed at that time due to the COVID-19 pandemic) and the deposition went forward on May 27. On September 11, 2020, the Court denied the motion as moot because Kennebrew’s deposition had proceeded.

Plaintiff now moves to reopen discovery to depose Kennebrew again. Plaintiff asserts that Kennebrew may not be available to testify at trial because trial may not go forward until 2022 and Kennebrew now lives in Idaho. Plaintiff contends that Kennebrew will testify that he was permitted to return to work at BUSD despite an injury worse than Plaintiff’s injury and that BUSD reached out to him to apply for a campus security position, despite Plaintiff’s placement on the preferential re-hire list. In opposition, Defendant asserts that discovery is closed and that this motion is Plaintiff’s attempt to legitimize her previously improper deposition of Kennebrew. Defendant believes that Plaintiff was going to call Kennebrew as a surprise witness, but the pandemic interfered with the trial date and now Plaintiff seeks a deposition because Kennebrew moved to Idaho.

Plaintiff improperly took the deposition of Kennebrew after the cut-off, despite Defendant’s objections, and Plaintiff has been dilatory in seeking to reopen discovery. The Court would prefer to avoid taking up Kennebrew’s time with another deposition. But Defendant has failed to establish prejudice. The trial date has been vacated and Kennebrew subsequently relocated. Plaintiff contends the testimony is crucial to her case. These factors weigh in favor of reopening discovery for the limited purpose of obtaining Kennebrew’s testimony.

Kennebrew’s first deposition is likely inadmissible under Code of Civil Procedure ; 2025.620. Absent an agreement to waive objection under ; 2025.620 and use the first deposition at trial, the Court will reopen discovery to permit a second deposition.



Case Number: ****8975    Hearing Date: March 18, 2021    Dept: 54

Superior Court of California

County of Los Angeles

Diana Gavilanes,

Plaintiff,

Case No.:

****8975

vs.

Tentative Ruling

Bellflower Unified School District,

Defendant.

Hearing Date: March 18, 2021

Department 54, Judge Maurice A. Leiter

Motion to Reopen Discovery

Moving Party: Plaintiff Diana Gavilanes

Responding Party: Defendant Bellflower Unified School District

The Court considers the moving papers, opposition and reply.

BACKGROUND

Plaintiff Diana Gavilanes brought this action against her employer Defendant Bellflower Unified School District. The operative complaint alleges she worked as a security guard for the District for 23 years. Plaintiff went on medical leave after she injured her right shoulder and neck while breaking up a fight between two students on March 17, 2015. On February 8, 2016, Plaintiff’s personal physician released her back to work with no restrictions. However, the District would not allow her to return to work until she was released to return to work following a Qualified Medical Exam through her workers’ compensation case. On July 13, 2016, Plaintiff underwent a QME and was released to return to work with no restrictions. Yet the District still refused to allow her to return to work, claiming her job description required her to lift 50 pounds over her shoulders. There had never been such a requirement in Plaintiff’s job description. Ultimately, the District fired Plaintiff on September 5, 2017 claiming she did not provide a medical release. Plaintiff alleges she was fired because of her perceived physical condition.

ANALYSIS

CCP ; 2024.050 provides: 

(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.

Trial initially was set for April 1, 2020, with a discovery cut-off date of March 2, 2020. On February 27, 2020, the parties filed a stipulation to continue the trial and related dates. This stipulation specifically stated that the discovery cut-off would not be continued.

Plaintiff nonetheless served a subpoena on third-party witness Bryan Kennebrew on May 12, 2020 to appear for deposition on May 27, 2020. On May 26, 2020, Defendant filed a motion to quash or stay the deposition of Kennebrew on the ground that discovery was closed. The motion was not heard before the scheduled deposition date (presumably because the Court was largely closed at that time due to the COVID-19 pandemic) and the deposition went forward on May 27. On September 11, 2020, the Court denied the motion as moot because Kennebrew’s deposition had proceeded.

Plaintiff now moves to reopen discovery to depose Kennebrew again. Plaintiff asserts that Kennebrew may not be available to testify at trial because trial may not go forward until 2022 and Kennebrew now lives in Idaho. Plaintiff contends that Kennebrew will testify that he was permitted to return to work at BUSD despite an injury worse than Plaintiff’s injury and that BUSD reached out to him to apply for a campus security position, despite Plaintiff’s placement on the preferential re-hire list. In opposition, Defendant asserts that discovery is closed and that this motion is Plaintiff’s attempt to legitimize her previously improper deposition of Kennebrew. Defendant believes that Plaintiff was going to call Kennebrew as a surprise witness, but the pandemic interfered with the trial date and now Plaintiff seeks a deposition because Kennebrew moved to Idaho.

Plaintiff improperly took the deposition of Kennebrew after the cut-off, despite Defendant’s objections, and Plaintiff has been dilatory in seeking to reopen discovery. The Court would prefer to avoid taking up Kennebrew’s time with another deposition. But Defendant has failed to establish prejudice. The trial date has been vacated and Kennebrew subsequently relocated. Plaintiff contends the testimony is crucial to her case. These factors weigh in favor of reopening discovery for the limited purpose of obtaining Kennebrew’s testimony.

Kennebrew’s first deposition is likely inadmissible under Code of Civil Procedure ; 2025.620. Absent an agreement to waive objection under ; 2025.620 and use the first deposition at trial, the Court will reopen discovery to permit a second deposition.



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