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Bita Trading, Inc. v. Nationwide Mutual Insurance Co.

United States District Court, S.D. California

August 19, 2014

BITA TRADING, INC., Plaintiff,


WILLIAM V. GALLO, Magistrate Judge.



Plaintiff Bita Trading, Inc. ("Plaintiff") alleges that Defendant Nationwide Mutual Insurance Company ("Defendant Nationwide") breached an insurance policy by denying Plaintiff's claim related to a loss that occurred at a car wash property. On August 22, 2013, after an August 21, 2014, ENE Conference, the Court set a schedule for the parties to file cross-Motions for Summary Judgment ("MSJs"). (Doc. No. 11.) On September 19, 2013, Plaintiff lodged a letter with the Court, requesting a modification of the Order After ENE Conference to allow additional discovery, and to continue the date for filing an MSJ. On September 23, 2013, at the Court's request, Defendants lodged a letter in response to Plaintiff's request. In their response, Defendants objected to Plaintiff's request for an extension of time to file cross-MSJs. On October 1, 2013, this Court denied Plaintiff's request as set forth in the September 19, 2013, letter brief. (Doc. No. 13.)

On January 6, 2014, the Honorable Jeffrey T. Miller, United States District Judge, issued an Order Granting Defendants' MSJ, and Denying Plaintiff's MSJ. (Doc. No. 25.) Judge Miller concluded that the Property Form did not provide coverage for the property losses and business interruption losses suffered by Plaintiff because it was not an additional insured under the Property Form. Id. at 12. As a result of Judge Miller's rulings, this case was closed on January 7, 2014. (Doc. No. 26.)

On January 13, 2014, Plaintiff filed a Motion to Vacate the Judgment and for Reconsideration of Judge Miller's Order Granting Defendants' MSJ. (Doc. No. 27.) In its Motion, Plaintiff argued that Defendants' MSJ was really a partial MSJ because the only relief sought was a coverage determination under the Sorrento policy, and the Bita policy was the subject of the first cause of action in the Complaint. Id. at 2. Plaintiff also sought reconsideration of the grant of partial summary judgment on the Sorrento policy. Id. at 3.

On March 4, 2014, Judge Miller Granted in Part and Denied in Part Plaintiff's Motion for Reconsideration. (Doc. No. 32.) In his Order, Judge Miller noted that Defendant specifically acknowledged that the Court's Order on the MSJs dealt only with the Sorrento policy, and not the Bita policy. Id. at 1. Both parties agreed that there were outstanding issues concerning the Bita policy, and the Court granted reconsideration on that claim and vacated the Clerk's judgment. Id . However, the Court found that Plaintiff failed to identify any newly discovered evidence, clear error, or an intervening change in controlling law, and therefore denied Plaintiff's motion for reconsideration concerning the Sorrento policy. Id. at 2.


On July 9, 2014, Plaintiff notified this Court of a discovery dispute, and on July 10, 2014, this Court held a telephonic Discovery Conference with counsel for all parties. The Court ordered that, by July 18, 2014, Defendant Nationwide must respond to Plaintiff's discovery requests that were served on June 30, 2014. (Doc. No. 41.) On July 22, 2014, Plaintiff's counsel informed the Court that the discovery dispute had not been resolved. On July 23, 2014, the Court issued an Order for counsel to meet and confer in person no later than July 25, 2014, in an attempt to resolve the ongoing dispute regarding Defendant Nationwide's discovery responses. (Doc. No. 42.)

On July 23, 2014, Defense counsel informed the Court of another discovery dispute. On July 24, 2014, the Court Ordered the parties to meet and confer in good faith in an attempt to resolve both of the pending discovery disputes. (Doc. No. 43.) The Court Ordered the parties to file a Joint Statement for Determination of Discovery Dispute ("Joint Statement") no later than August 1, 2014, at 12:00 p.m., and set a Discovery Hearing for August 7, 2014, at 7:30 a.m., if any disputes remained after in person good faith meet and confer efforts. Id.

On July 31, 2014, Plaintiff filed a Second Motion for Relief from Order Granting Summary Judgment based on newly discovered evidence. (Doc. No. 44.) In its Motion, Plaintiff alleged that, in granting Defendants' MSJ, the Court found that the policy did not cover Plaintiff for property damage even though the certificate of insurance issued to Plaintiff by the insurance agent represented that Plaintiff was covered. Id. at 2. Plaintiff claimed that, at the time of the original Motion, it was unaware that the insurance agent twice transmitted this certificate of insurance to Defendant Nationwide with instructions to add three parties, including Plaintiff, to the property damage coverages. Id . Plaintiff also stated that after these instructions, Defendant Nationwide amended the policy to add the two other parties to the property coverage but, according to the newly discovered evidence, mistakenly omitted Plaintiff. Id.

On August 1, 2014, in compliance with this Court's Order, the parties filed a Joint Statement, and represented that counsel for both parties had met and conferred in person regarding both discovery disputes on July 25, 2014. (Doc. No. 45 at 2.) On August 6, 2014, due to circumstances beyond counsel's control, Defense counsel requested to continue the August 7, 2014, Discovery Hearing. (Doc. No. 46.) The Court granted Defense counsel's request, and the August 7, 2014, Discovery Hearing was vacated. (Doc. No. 47.) The Discovery Hearing was reset for August 12, 2014, at 3:00 p.m. Id.

On August 12, 2014, at 3:00 p.m., the Court held a Discovery Hearing. Mr. Matthew Herron appeared on behalf of Plaintiff, and Mr. Roger Raphael appeared on behalf of Defendants. After reviewing the Joint Statement filed by the parties, along with all other relevant documents filed in this case, and listening to the arguments ...

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