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Joseph Cardenas and Machelle Cardenas v. Robertson Whittemore

January 18, 2013

JOSEPH CARDENAS AND MACHELLE CARDENAS, INDIVIDUALS; AND EL PASEO GRANDE, LLC, AN ARIZONA LIMITED
LIABILITY COMPANY,
PLAINTIFFS,
v.
ROBERTSON WHITTEMORE, INDIVIDUALLY AND AS TRUSTEE OF THE SUZANNE WHITTEMORE MARTIAL TRUST U/D/T/, DATED APRIL 27, 1995, AS TRUSTEE OF THE SUZANNE WHITTEMORE BYPASS TRUST U/D/T, DATE APRIL 27, 1995, AND AS TRUSTEE OF THE ROBERTSON WHITTEMORE LIVING TRUST, DATED APRIL 27, 1995, AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Honorable Larry Alan Burns United States District Judge

ORDER DENYING PLAINTIFFS' MOTION RE: NEWLY

DISCOVERED EVIDENCE

At the pretrial conference on October 30, 2012, Plaintiffs represented that they had discovered a previously-unknown witness, who had owned a sixth lot in the development at issue here. In its order following the pretrial conference (Docket no. 91), the Court gave Plaintiffs leave to file a late motion for summary judgment based on the evidence they had found. The order also permitted Defendants to file an opposition, and provided that no hearing would be held unless later ordered.

The new evidence concerns a sixth lot in the Ocean Terrace subdivision. While counsel for both sides knew about lots 1 through 5, Plaintiff's counsel represents that she only recently found out about the sixth lot, and was able to track down a grandson of its owner. Plaintiff's counsel represented that she believed this grandson, Louis Murphey, might have critical information.

The motion requests leave to file a motion for partial summary judgment. The motion also requests leave to amend the claims to take the new evidence into account, and for additional discovery.

Additional Discovery

Discovery in this case finally closed on January 13, 2012. Under Fed. R. Civ. P. 16, the Court has discretion whether to reopen discovery or to hold the parties to discovery cutoff dates. Cornwell v. Electra Central Credit Union, 439 F.3d 1018, 1027 (9th Cir.2006) (holding that trial court had discretion to deny motion to reopen discovery, even if additional discovery might have revealed highly probative evidence).

The motion discusses the history of the discovery process, in an effort to show why the new witness, Louis Murphey, was not located earlier. It explains that although Plaintiffs' counsel attempted to track down descendants of the purchasers of lots 1 through 5 of the Ocean Terrace tract, no one apparently knew that there had been a sixth lot, which Murphey's family owned. It appears all parties assumed the five lots mentioned in the Declaration of Restrictions were the only lots in the subdivision. The motion explains that it was only when Plaintiff's counsel looked closely at a large copy of the original map of the subdivision from 1950 was it discovered that there had been a sixth lot. While the motion explains in detail how Plaintiff's counsel found out about the sixth lot, it doesn't explain why the sixth lot couldn't have been discovered earlier.

The motion does not make completely clear when Plaintiff's counsel first saw the original subdivision map. (Decl. of Teresa Polk in Supp. of Ps.' Mot. (Docket no. 92-2), ¶ 4 (stating that, on or around October 9, 2012, Plaintiff's counsel obtained a larger copy of the original subdivision than she had previously seen). The implication seems to be that earlier copies of the map that Plaintiff's counsel saw were too small to reveal the existence of a sixth lot. But on review of even the small map attached as an exhibit (Ex. A at 2), the presence of a sixth lot is obvious. And, as Defendants point out, the original complaint refers to the same subdivision map, which means Plaintiffs were aware of it before discovery even began.

Even assuming Plaintiff's counsel first obtained the subdivision map after the close of discovery, the fact remains that it could have been obtained at any time. Accepting, arguendo, Plaintiffs' contention that the presence of any additional lots in the subdivision could affect the validity of restrictions on the other five lots, Plaintiffs were on notice of the need to confirm their assumptions about the subdivision's history, especially the number of lots. It bears emphasis that Plaintiffs were not misled about this either by other parties or by inaccurate records, or hindered in their search.. Rather, it appears they just didn't find the sixth lot because they didn't look for it. And because they did not know about the sixth lot, they didn't know to look for its owner, which would have led them to the owner's grandson Louis Murphey. Because Plaintiffs were not diligent, the request to reopen discovery is DENIED.

Effect of Additional Evidence

While Plaintiffs will not be given leave to conduct additional discovery, the question remains whether they should be permitted to amend their claims to include new theories based on the evidence they have, or might be able to present at trial.

Louis Murphey lives in Tucson, Arizona, and Plaintiffs' motion suggests he is not eager to appear as a witness in this case. So in all likelihood, he will not be available to testify. But even assuming he were available, his testimony would likely be inadmissible hearsay. It does not fall within exceptions to the hearsay rules in Fed. R. Evid. 803(19) or (20); 804(b)(4); or 807.*fn1

What is more, Murphey's observations, even if admissible, would not be particularly probative. Plaintiff's counsel says she spoke with him by phone, and received a follow-up message from him. (Polk Decl., ΒΆ 8.) Murphey initially said he thought he might have a box of old photographs and records relating to Ocean Terrace, but later said all he had were the closing papers from sale of the lots. His ...


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