ERIC BEJAR ET AL VS JOSEFINA LOPEZ

Tentative Rulings

Case Number: BC675339    Hearing Date: October 07, 2020    Dept: F49

Dept. F-49

Calendar # 7

Date: 10-7-20

Case # BC675339

TRIAL DATE: 10-13-20 c/f 8-3-20 c/f 5-26-20 c/f 3-30-20 c/f 2-24-20 c/f 12-2-19

RECONSIDERATION

MOVING PARTY: Defendant, Josefina Lopez

RESPONDING PARTY: Plaintiffs, Eric Bejar

RELIEF REQUESTED

Motion for Reconsideration of the Order Confirming the Referee Report Recommendation Denying the Motion to Compel the Independent Medical Examination.

SUMMARY OF ACTION

On September 8, 2015, Plaintiff Eric Bejar was on-duty as a California Highway Patrol officer operating a CHP issued motorcycle. Plaintiff attempted to execute a traffic stop of a vehicle in proximity to the vehicle of Defendant Josefina Lopez. In the process of the stop, Defendant’s vehicle hit the rear wheel of the motorcycle, thereby causing Plaintiff to fall off his vehicle and slide into the roadway.

Plaintiff Christina Bejar is the spouse of Eric.

On September 8, 2017, Plaintiffs filed a complaint for negligence and loss of consortium.

RULING: Denied.

On February 13, 2020, the court referred the parties to a discovery referee for all remaining discovery disputes. The parties additionally executed a stipulation whereby the non-prevailing party on any dispute submitted to the referee shall be responsible for payment of the referee fee on said dispute.

At the time of reference, the court declined to extend the discovery or motion cut-off dates, and extended the trial date to March 3, 2020. On February 21, 2020, the court vacated a number of discovery motion hearing dates beginning with the motion to compel the neurological medical examination motion on February 21, 2020. On February 28, 2020, the court entered the parties’ stipulation for the appointment of the discovery referee, Judge Waldrip (ret). On March 17, April 1, and May 7, 2020, the court continued the trial date to May 26, 2020, August 3, 2020, and then to October 13, 2020.

On June 15, 2020, the court accepted and approved the referee report. The report specifically recommended the court deny the motion to compel the independent neurological medical examination on grounds of untimeliness, as the motion appeared after the prior discovery cut-off date. The report additionally found that the request to reopen the discovery deadlines in the reply to the motion unfairly prejudiced Plaintiffs of their opportunity to respond. On July 6, 2020, Defendant filed a motion for reconsideration of the order confirming the referee report recommendation denying the motion to compel the independent neurological examination.

Defendant disputes the finding of the referee that the motion to compel the independent medical examination was filed on April 20, 2020—after the discovery and motion cut-off. Defendant states that when the court vacated the discovery dates, the parties stipulated to allow the referee to hear all pending disputes. The determination of the April 20, 2020 “late filing” of the motion was the result of a misrepresentation by Plaintiffs’ counsel to the court. The IME motion was the same relief specially set by the court for February 21, 2020, and re-filed with Adjudicate West for Judge Waldrip to consider.

Plaintiff in opposition contends the motion lacks any “new” facts for purposes of supporting a motion for reconsideration. Plaintiffs deny any claims of “misstatement” to Judge Waldrip, and further counter that contrary to the claim of a simple re-filed motion, Defendant in fact filed a motion with new and additional argument. Plaintiff states that Judge Waldrip specifically instructed the parties to forward all previously filed briefs for consideration, which in no way constituted an invitation for redrafted items, even if it covered the same relief.

Defendant in reply denies the finding that the motion was only filed on April 20, 2020; Defendant re-filed a “substantively identical…second version” of the motion to compel IME. The second version only “included an updated procedural history on a caption for the discovery referee,” which in no way constitutes a “new, more persuasive brief.”

Defendant also continues to accuse Plaintiff of false representation to the court and Judge Waldrip. Said “false representation” constitutes the “new and different” fact required for a motion for reconsideration.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Citations.) A motion for reconsideration will be denied absent a strong showing of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; Forrest v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th 183, 202 disapproved of and overruled on unrelated grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172 (footnote 3); New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212–213; Baldwin v. Home Sav. of America. (1997) 59 Cal.App.4th 1192, 1199.) Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” (Gilberd v. AC Transit, supra, 32 Cal.App.4th 1494, 1499.) Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Id.) The burden under Section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at trial. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)

On January 28, 2020, the court granted Defendant’s ex parte application to specially set the IME for February 21, 2020. The court ordered Defendant to separately file the motion pursuant to statutory deadlines. The filing deadline was well before the motion filing cut-off date, thereby allowing consideration of the motion by the discovery referee, along with any motions filed prior to the cut-off date. The motion and opposition were filed on January 30 and February 6, 2020, respectively.

On February 27, 2020, the parties stipulated to allow Judge Waldrip to rule on all “remaining discovery disputes.” Given the court vacated all discovery motion dates on February 21, 2020—eight days after February 13, 2020 order referring the parties to a discovery referee—the parties’ subsequent stipulation apparently contemplated the determined scope of any and all remaining discovery disputes to be submitted before the referee.

On April 20, 2020, Defendant admits to the filing of a second motion to compel an independent medical examination for consideration by Judge Waldrip in his capacity as a discovery referee. Defense counsel states that the motion included “an update regarding the meet and confer and a few minor non-substantive changes.” [Dupuy Decl., ¶10.] While Defendant characterizes the April 20, 2020 IME motion as a mere re-filing of the previously set motion specially set by the court for February 21, 2020, the report specifically states:

“It is unclear why [Lopez] did not comply with the briefing instructions given by the Court in connection with the ‘specially’ set hearing on February 21, 2020, which could have been passed on to the Referee for management. Perhaps relying upon the ‘timely’ notice of the IME discussed above, Defendant apparently overlooked or misunderstood the concurrent deadline for motions—February 15, 2020, that, to the knowledge of the Referee, has never changed.”

Judge Waldrip made an apparent factual finding regarding the propriety of the April 20, 2020 filed motion, which Defendant now seeks to challenge on grounds of error by the referee and the court in approving the order. As addressed above, Plaintiff states Judge Waldrip specifically instructed the parties to forward all previously filed briefs for consideration. This representation is undisputed by Defendant. The language of the ex parte order specially setting the hearing, the stipulation of the parties, and referee report itself also additionally upholds the representations of Plaintiff. Defendant presents no evidence of an invite for redrafted items, even if it covered the same relief and made inconsequential changes in the opinion of defense counsel.

Defendant’s argument lacks a basis of support for the finding of a “new” fact. The motion constitutes a direct factual challenge with the finding of Judge Waldrip regarding the propriety of the revised motion. A disagreement of opinion over the characterization of the revisions in the submitted item and accusations of misrepresentation by opposing counsel are not new facts. The court referred the action to the discovery referee because of the regular disputes addressed in the original referral order. To second-guess the opinion of the referee undermines the purpose of the of the discovery referee referral.

Even if the court considered the changes in the revised motion as inconsequential and therefore the April 20, 2020 filed motion somehow constituted a “new” fact, the motion fundamentally lacks address of the diligence standard underlying the findings of the referee. The report specifically questions why the motion was re-filed in the first place after the framework for management of the subject discovery disputes by the referee was set. Again, Defendant timely filed the original motion, and the original motion would have been duly accepted by Judge Waldrip for consideration. In other words—Defendant fails to satisfactorily answer the question of why the prior motion was simply not submitted along with any other items, and why was the “updated” motion considered necessary. The paucity of explanation renders the motion wanting for a basis of requested for relief under the standard for reconsideration.

Defendant is ordered to give notice.