Marquez v. Ortega

• Decision Date: 28 February 2013
• Docket Number: No. 1 CA–CV 12–0028.,1 CA–CV 12–0028.
• Citation: Marquez v. Ortega, 231 Ariz. 437, 296 P.3d 100 (Ariz. App. 2013)
• Parties: Maria MARQUEZ, individually and as Personal Representative of the Estate of Alberto A. Marquez, deceased, and on behalf of Perla Marquez, Richard Marquez, and Isabel Marquez, surviving minor children, Plaintiffs/Appellants, v. Rosario ORTEGA and Jane Doe Ortega, husband and wife; Hayden Farms, Inc., an Arizona Corporation, Defendants/Appellees.
• Court: Arizona Court of Appeals

231 Ariz. 437

296 P.3d 100

Maria MARQUEZ, individually and as Personal Representative of the Estate of Alberto A. Marquez, deceased, and on behalf of Perla Marquez, Richard Marquez, and Isabel Marquez, surviving minor children, Plaintiffs/Appellants,

v.Rosario ORTEGA and Jane Doe Ortega, husband and wife; Hayden Farms, Inc., an Arizona Corporation, Defendants/Appellees.

No. 1 CA–CV 12–0028.

Court of Appeals of Arizona, Division 1, Department C.

Feb. 28, 2013.

Zachar Law Firm, P.C. By Christoper J. Zachar, Phoenix, Attorney for Plaintiffs/Appellants.

Beaugureau, Hancock, Stoll & Schwartz, P.C. By David Stoll, and Terrance L. Sims, and W. Reed Campbell, Phoenix, Attorneys for Defendants/Appellees.

OPINION

HALL, Judge.

¶ 1 Maria Marquez appeals from the judgment entered against her individually and as personal representative of the Estate of Alberto A. Marquez, (Marquez) on a jury verdict in favor of Rosario Ortega and Jane Doe Ortega, and Hayden Farms, Inc. (collectively, defendants). Marquez contends the trial court should not have denied her request to extend the expert disclosure and discovery deadlines. We conclude that the trial court did not abuse its discretion. We further conclude that the trial court was not required to hold a “culprit hearing” before imposing sanctions. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 This is a wrongful-death action arising out of a motor-vehicle collision. Marquez filed a complaint against defendants in November 2008, alleging that on December 13, 2007, Rosario Ortega was driving a John Deere cotton picker eastbound on Southern Avenue in Buckeye, when a “portion of the farm equipment extend[ed] over into the westbound lanes [and] collided with [Alberto Marquez's] vehicle, causing his automobile to careen off to the right and under a steel cable, thereby causing his death.” Marquez originally retained Larry Zier as counsel; Freeman M. Butland, a licensed California attorney, subsequently associated with Zier as Pro Hac Vice counsel.

¶ 3 In April 2009, court administration generated a 150–day order informing the parties that Arizona Rule of Civil Procedure (Rule) 38.1 “will be strictly enforced” and directing the parties to file a motion to set and certificate of readiness as well as specific objections to witnesses and exhibits, stating that otherwise the case would be placed on the inactive calendar and subsequently dismissed.

¶ 4 On December 1, 2009, Marquez filed a motion to set and certificate of readiness, and requested that the matter be set for trial.¹ Defendants filed a controverting certificate in which they argued that additional disclosure and extensive discovery still had to be completed. The court directed the parties to prepare a stipulated discovery schedule and proposed order. Pursuant to a January 2010 joint pretrial memorandum and proposed scheduling order, the court ordered that the identities and subject areas of non-expert and expert witnesses be disclosed by March 31, 2010, Marquez's final expert disclosure be served by April 30, 2010, written discovery and depositions be completed by August 31, 2010, and all discovery motions be filed by October 15, 2010.

¶ 5 Shortly before the March 31, 2010 disclosure deadline, at Marquez's request, the parties filed a stipulated motion to extend all discovery deadlines by 120 days. The court granted the motion in a written order, finding that good cause had been shown for extending the discovery deadlines. As extended, the deadlines required, first, the parties to identify experts and their subject areas by July 29, 2010; second, Marquez to disclose final expert opinions by August 27, 2010; third, the parties to complete written discovery and depositions by December 29, 2010; and fourth, the parties to file discovery motions by February 11, 2011.

¶ 6 On December 24, 2010, Butland, Marquez's California counsel, moved to extend the discovery cut-off date, acknowledging that the deadlines for Marquez to identify her experts and subject areas, and the disclosure of her final expert opinions, had already passed. Butland explained that Sean Berberian had replaced Zier as local counsel in April 2010, and claimed that Berberian had not informed him of the new deadlines and had neglected to attempt to extend those deadlines.² However, Butland acknowledged in his accompanying declaration that he had been faxed the order setting the deadlines by local counsel “at some point” and requested that the court grant him a reasonable amount of time to obtain new local counsel. Finally, Butland asserted defendants would not be prejudiced by an extension because no trial date had been set.

¶ 7 Defendants opposed Marquez's motion to extend discovery, arguing that Marquez failed to demonstrate “good cause” under Rule 37(c)(1). Defendants elaborated that the only witness deposed by Marquez was Rosario Ortega, on October 26, 2009, and that the last supplemental disclosure by Marquez was on July 31, 2009. Defendants further pointed out that Marquez had repeatedly failed to meet court deadlines and detailed Marquez's numerous failures to comply with disclosure and discovery obligations throughout the case.

¶ 8 Neither party requested oral argument. On January 28, 2011, the trial court found that Marquez had not established good cause to further extend the deadlines and denied Marquez's motion. The court also rejected Marquez's argument that no prejudice had occurred because a trial date had not been set:

Because most civil divisions of the Maricopa County Superior Court (including Judge Myers) have changed their approach regarding the setting of trial dates, the argument that “no trial date has been set” no longer has merit; the current practice is to set a trial date following the expiration of discovery deadlines.

¶ 9 Marquez claimed in a motion for reconsideration that the stipulation to extend the discovery deadlines was “invalid” because it was signed only by local counsel, and that “out-of-state counsel never got the deadlines calendared.” Following a telephonic hearing, the court found that “a culprit hearing is not warranted” and denied the motion.

¶ 10 In February 2011, Christopher J. Zachar filed a notice of association of counsel for Marquez, indicating that he had been retained as local counsel in place of Berberian. Through Zachar, Marquez provided an amended cumulative initial Rule 26.1 disclosure statement as well as several Rule 26.1 supplements disclosing experts and their opinions. The court granted defendants' motion to strike Marquez's disclosure statements as untimely. Marquez moved for leave to depose defendants' experts, which the court denied. Marquez subsequently moved for the court to clarify its order pertaining to her expert witnesses. The court noted that “Defendants relied on the nondisclosure and the deadlines set by the Court” and “clarifie[d] that any matter or person not timely disclosed pursuant to the deadlines imposed in the Scheduling Order [were] precluded for the reasons previously articulated by the Court.” Marquez, however, provided a comprehensive list of witnesses and exhibits for trial, which included forty-four potential witnesses and twenty-five potential exhibits. Defendants objected, and the court reaffirmed its order that the experts previously barred from testifying would not be permitted to testify and that other lay witnesses timely disclosed by Marquez could not testify in an expert capacity.

¶ 11 The case proceeded to trial in September 2011, and the jury found in favor of defendants. The court entered judgment against Marquez and awarded defendants their taxable costs in the amount of $24,407.20.

¶ 12 Marquez timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 12–2101(A)(1) (Supp. 2012).

DISCUSSION

¶ 13 Marquez argues on appeal that the court abused its discretion: (1) when it denied her additional time to conduct disclosure and discovery because no trial date had been set and there had been no finding of prejudice to defendants, and (2) by excluding her late-disclosed witnesses without first conducting a “culprit hearing” to determine whether fault for the missed deadlines lay with Marquez or her attorneys.

¶ 14 A trial court has broad discretion in ruling on disclosure and discovery matters, and this court will not disturb that ruling absent an abuse of discretion. Link v. Pima County, 193 Ariz. 336, 338, ¶ 3, 972 P.2d 669, 671 (App.1998). In reviewing for an abuse of discretion, “[t]he question is not whether the judges of this court would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances, could have made the ruling without exceeding the bounds of reason.” Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985) (citation omitted). We do not substitute our discretion for that of the trial court. Id.

¶ 15 Marquez first argues that the trial court abused its discretion by denying her an additional opportunity to conduct disclosure and discovery, given that no trial date had been set. We disagree.

¶ 16 Rule 37(c) provides, in relevant part, that “[a] party who fails to timely disclose information required by Rule 26.1 shall not, unless such failure is harmless, be permitted to use as evidence at trial, at a hearing, or on a motion, the information or witness not disclosed, except by leave of court for good cause shown.” See also Rule 16(f) (“If a party or attorney fails to obey a scheduling or pretrial order, ... the judge, upon motion or the judge's own initiative, shall, except upon a showing of good cause, make such orders with regard to such conduct as are just, including, among others, any of the orders provided in Rule 37(b)(2)(B), (C), or (D).”).³

¶ 17 In arguing that her failure to comply with the disclosure and discovery deadlines was harmless, Marquez relies primarily on Allstate Ins. Co. v. O'Toole, 182 Ariz. 284...