County of Riverside v. Superior Court
Filed 9/23/11 County of Riverside v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
| COUNTY OF RIVERSIDE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; ADAM GRAMMATICO et al., Real Parties in Interest. | E054263 (Super.Ct.No. RIC443779) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Mac R. Fisher, Judge. Petition granted in part; denied in part.
Kinkle, Rodiger and Spriggs and Bruce E. Disenhouse for Petitioner.
No appearance for Respondent.
Tina Marie Chen; Fred G. Glantz; and George M. Rosenberg for Real Parties in Interest.
In this matter, we have reviewed the petition and both the letter and preliminary oppositions filed by real parties in interest. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
First, we reject real parties in interest’s contention, raised in their letter opposition, that the petition was unreasonably delayed. It was filed 23 days after the hearing. There is no statutory time limit for this writ petition. A petition filed within the analogous time for appeal (60 days) is generally considered timely. (See Volkswagen of America, Inc. v. Superior Court (2001) 94 Cal.App.4th 695.) Petitioner in fact proceeded with commendable speed.
Both of the rulings under review are subject to the “abuse of discretion” standard. (Scripps Health v. Superior Court (2003) 109 Cal.App.4th 529.) In the case of the ruling allowing real parties in interest to designate a new expert, although the matter is close, we cannot find that the decision was “beyond the bounds of reason.” (See Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419.) The trial court could have found, and presumably did find, that the neglect of attorney Glantz in failing to realize that an accident reconstruction expert was necessary was excusable.
However, with respect to the ruling allowing real parties in interest to take the late depositions of petitioner’s experts, real parties in interest failed to make any showing of excusability. Counsel first was late in serving the notices to depose some of the experts and, further, he failed to serve notices with regard to the other experts at all. Code of Civil Procedure section 2024.050, subdivision (b)(2), which governs motions to reopen discovery, requires a court to consider the “reasons that the discovery was not completed.” In this case, there was no reason proffered except confessed neglect. There was no miscalendaring, no press of business, and no reliance on an untrustworthy clerical assistant. (See generally 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in the Trial Court, § 161, pp. 756-757.) In allowing relief on this point, the trial court did abuse its discretion.
DISPOSITION
Accordingly, the petition for writ of mandate is granted in part and denied in part. Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order allowing real parties in interest to take the tardy depositions of petitioner’s experts, and to enter a new order denying said motion. In all other respects, the petition is denied.
In the interests of justice, the parties shall bear their own costs.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
The previously ordered stay is lifted.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
KING
Acting P. J.
We concur:
HOLLENHORST
J.
RICHLI
J.
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