Can't Publish, Might Be Useful ...

Mark Tanner Construction, Inc. v. Hub International Insurance Services, Inc., No. C071176 (D3 Mar. 10, 2014)

So on the eve of its opposition to summary judgment being due, plaintiff claims to have obtained a smoking gun document that had been heretofore suppressed due to an alleged (but never litigated) discovery violation by the defendant. Based on that it sought leave to amend its complaint and continue the summary judgment hearing under Code of Civil Procedure § 437c(h). The trial court denied both requests and ultimately granted summary judgment for defendant. In the course of affirming, the Third District makes a number of strong statements to the effect that an alleged discovery violation by the moving party does not itself warrant leave to amend or a § 437c(h) continuance if it the dispute has never been properly litigated by the non-moving party. This discussion would be pretty useful for a moving defendant whenever a plaintiff files an amendment motion or § 437c(h) request in which it argues that it should get to escape summary judgment because it got stiffed in discovery, even though it never bothered to file a motion to compel to protest or remedy the stiff-age. (Happens all the time.) But alas, the court declines to publish these parts of the decision, reserving publication solely for a discussion regarding the nature of insurance brokers’ duties to their clients.

Affirmed.

On the same day, the Fifth District issued this sixty-four page decision, as modified on rehearing, which similarly declines to publish parts of an opinion dealing with various interesting procedural issues, such as inconsistent special verdicts, invited error in the context of jury instructions, proof of prejudice from instructional error, evidentiary sanctions for undisclosed documents, and the scope of reversal in a case involving the joint and several liability of appealing and non-appealing parties.