2016-00202245-CU-WT

Stephen Nye vs. GQ North Enterprises, Inc.

Nature of Proceeding: Motion to Reopen Discovery

Filed By: Fry, Christopher J.

Plaintiff Stephen Nye’s (“Plaintiff”) motion to reopen discovery is DENIED.

Defendants’ request for judicial notice of the Order on Plaintiff’s Ex Parte Application to Continue Trial dated June 20, 2018, is granted.

Plaintiff originally filed this action on October 24, 2016, and was represented by his former counsel, Sean Patrick. Trial was first schedule to begin on February 27, 2018. The parties then stipulated to continue the trial, and on February 7, 2018, the Court continued the trial date to June 26, 2018.

On June 15, 2018, Plaintiff substituted his former counsel, Mr. Patrick, for his current counsel, Christopher J. Fry. Four days later, on June 19, 2018, Mr. Fry filed an ex parte application in Department 47 before Judge De Alba to continue trial and related dates.

On June 20, 2018, the Court (Judge De Alba) granted Mr. Fry’s request to continue the trial date, but denied his request to reopen discovery based on the new trial date. (ROA 45.) The order states “DISCOVERY CLOSED.” Trial is currently scheduled for November 13, 2018.

Mr. Fry met and conferred with defendants’ counsel via email regarding Plaintiff’s request to reopen discovery, but defendants would not agree to reopen discovery. This motion followed.

Plaintiff now moves to reopen discovery to amend his prior discovery responses to include witnesses and other facts supporting the allegations, depose the defendants with a document production request, and send no more than 15 of each written discovery requests (interrogatories and admissions).

Although titled as a “motion to reopen discovery,” this is in substance a motion for reconsideration of Judge De Alba’s June 20, 2018, ex parte order.

There are strict requirements for a motion for reconsideration. Foremost is that the motion for reconsideration must be heard by the same judge who issued the order sought to be reconsidered (Code Civ. Proc. §1008(a)). The motion for reconsideration must be filed within 10 days of the order denying the motion. (CCP § 1008(b)). The motion for reconsideration must also be supported by “new or different facts, circumstances or law.” (Id.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The moving party must “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.” (CCP § 1008(a)).

Further, and consistent with the “same judge” requirement, it must be noted that an order made by one judge cannot be reconsidered by another judge of the same court, absent the unavailability of the first judge (such as by retirement). (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1232.)

This is an improper motion for reconsideration. Plaintiff has improperly asked this judge [Judge David Brown] to reconsider Judge De Alba’s June 20, 2018 ex parte order. Plaintiff has also failed to comply with the time limitations for filing a motion for consideration and has failed to set forth via affidavit any new or difference facts, circumstances, or law. Plaintiff’s prior ex parte motion to continue the trial and related dates before Judge De Alba advanced the same grounds advanced in this present motion.

Based on the foregoing, Plaintiff’s motion is DENIED.

Defendants’ request for sanctions is denied.