2012-00129861-CU-IC

Hugh Lubkin vs. Farmers Insurance Company, Inc.

Nature of Proceeding: Motion to Reopen Discovery

Filed By: Laskin, Alan M.

Plaintiff’s Motion to Reopen Discovery After New Trial Date Has Been Set is DENIED.
C.C.P., sec. 2024.050. Sanctions are neither requested nor imposed.

Code Civ. Proc. § 2024.050(b) provides that “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.”

In this insurance bad faith action, plaintiff alleges that he purchased a Collectible Auto
Policy from defendant Farmers Insurance for his Greenwood Corvette in 1999. On or
about Dec. 6, 2010 his vehicle was stolen. Plaintiff filed a claim with Farmers. On
May 29, 2012, Farmers denied plaintiff’s claim based upon alleged material
misrepresentations by plaintiff.

Trial was originally set for July 1, 2014. The parties stipulated to continue the trial
date, and a new trial date has not yet been set.

Plaintiff seeks to reopen all discovery, on the grounds that the vehicle’s engine has just
recently been located in the State of Washington. Plaintiff asserts that this discovery
could reveal crucial evidence about the theft of the vehicle.

In opposition, defendant asserts that the engine is completely irrelevant to the trial of
this bad faith action. Plaintiff must prove breach of the insurance contract based on
what Farmers knew or should have known during its investigation from 2010 through
2012.

The material misrepresentations on which Farmers relied in denying the claim included
the condition of the vehicle at the time it was shipped to Florida for modifications and
the status of plaintiff’s payment for the modifications. The location of the engine has
nothing to do with those asserted misrepresentations.

In opposition, defendant asserts that Farmers provided its entire claims file to plaintiff
on or about April 5, 2013. That file included the identities of those persons who
worked on the claims investigation. Despite having this information, plaintiff failed to
conduct any further discovery for more than six months. In Nov. 2013, plaintiff noticed
the depositions of two Farmers’ claims adjusters and the Farmers investigator.
Farmers notified plaintiff that the adjusters are located in Oklahoma, and must be
deposed there. Plaintiff made no further effort to schedule the adjusters’ depositions.
Plaintiff did depose the investigator, and attempted to depose Luke Davenport, a
former employee who worked on the claim.

During meet and confer prior to this motion, plaintiff counsel indicated that he wanted
to depose David Israel, plaintiff’s insurance agent, and asked Farmers to stipulate that
his deposition could be conducted after the discovery cut off.

Farmers conducted an extensive investigation in Florida, where plaintiff had voluntarily
shipped his vehicle prior to the theft. Farmers located and obtaining recorded
statements of witnesses as part of its claims investigation. Despite inclusion of that
information in the claims file provided to Plaintiff, plaintiff has not made any attempt to
depose witnesses in Florida.

The Court finds that the plaintiff has failed to establish the necessity for reopening all
discovery. As above, the discovery of the engine does not establish a reason for
reopening all discovery, including depositions of claims adjusters in Oklahoma, the
former claims representative Davenport and plaintiff’s own insurance agent Israel.

This ruling does not affect the following: Farmers has stipulated to the depositions of
David Israel and the two representatives in Oklahoma after the discovery cut off, as
plaintiff attempted to depose the claims representatives prior to the cut off.

Plaintiff has not been diligent in taking the depositions of Davenport or Israel or in
conducting depositions in Florida.

Nor does plaintiff show why an investigation in the State of Washington is necessary
for this suit, as the material misrepresentations are unrelated to the location of the
engine. Although the condition of the vehicle at the time it was shipped to Florida is
one of the material misrepresentations, the condition of the engine in 2014 will not
reveal its condition in 2006. Defendant does not dispute that the engine was in the
vehicle when it was shipped to Florida, or that the engine was missing when the
vehicle was recovered.

Plaintiff asserts that Farmers will not be prejudiced by the conduct of further discovery.
Farmers asserts that plaintiff has already had two years to conduct discovery, and
Farmers will be prejudiced by the increased litigation costs. Farmers was ready to
proceed to trial in July 2014, and only stipulated to continue the trial date based on a
conflict with plaintiff’s counsel’s personal calendar (the induction of counsel’s daughter into the Naval Academy.)

The motion is denied, except as otherwise stated, based on plaintiffs’ failure to show
good cause why the discovery is necessary and failure to show diligence in conducting
discovery.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.