Cherie Cook,et Al v. Tacoma Mall Partnership And Simon Property Group, Inc, 48284-3

Background

In Oct 2014 Cherie Cook sued Simon Property Group and related mall entities after an assault outside Tacoma Mall, alleging negligent failure to protect an invitee. The case was placed on a standard track schedule with a joinder confirmation deadline (Feb 5, 2015) and discovery cutoff (Aug 20, 2015).
Simon had a security contract with U.S. Security Associates/Andrews (collectively “Security”), which tendered defense/indemnity early in the case; Security’s identity surfaced in disclosures in April–May 2015.
Cook sought to add Security as a defendant in July but her first joinder motion was stricken; she later obtained new counsel and moved again in September. The court granted leave to amend and Cook filed a fourth amended complaint naming Security.
At an Oct 2, 2015 hearing the court denied the Mall’s summary judgment but refused to reopen discovery as to Security, even after Cook argued CR 26 and that she needed discovery to identify the guard and respond to Security’s defenses; the court did continue the trial date.
Cook moved to reconsider the discovery ruling; the trial court denied reconsideration, citing court effort and prejudice to the Mall from reopening discovery and rescheduling, and questioned prior counsel’s conduct.
Cook obtained discretionary appellate review; the Court of Appeals reversed, holding the trial court abused its discretion by denying discovery as to the newly joined party and by denying reconsideration, but declined to reassign the case to a different judge.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court abused discretion by refusing to allow discovery as to a party added after the discovery cutoff	Cook: CR 26 provides broad discovery rights; joining a new party entitles her to discovery against that party; good cause to extend discovery	Mall: Cook delayed adding Security; reopening discovery prejudices Mall and rewards self-imposed delay	Reversed: abuse of discretion — allowing amendment implied permission to pursue discovery as to Security; expired cutoff and prior favorable rulings are untenable reasons to deny discovery
Whether denial of reconsideration was an abuse of discretion	Cook: reconsideration required because discovery denial was erroneous and prejudicial	Mall: reopening discovery would prejudice trial readiness	Reversed: denial of reconsideration was an abuse of discretion; claimed prejudice was undermined because trial date had already been continued
Whether trial judge’s comments required reassignment for judicial bias	Cook: judge’s comments show bias and warrant remand to different judge	Mall: comments do not meet appearance of partiality standard	Denied: comments, though ill-advised, did not objectively show bias sufficient to overcome presumption of impartiality
Whether appellate remedy should be reopening discovery as to all defendants	Cook (in reply): discovery as to Security may reveal further Mall culpability and warrant full reopening	Mall: not directly addressed on reply	Not decided on merits: court declined to address argument raised first in reply brief; remanded to reopen discovery only as to Security

Key Cases Cited

Buhr v. Stewart Title of Spokane, LLC, 176 Wn. App. 28 (appellate standard for reviewing denial to extend discovery cutoff)
State ex rel. Carroll v. Junker, 79 Wn.2d 12 (abuse of discretion standard)
Cook v. King County, 9 Wn. App. 50 (CR 26 liberally construed; broad right to discovery)
Burnet v. Spokane Ambulance, 131 Wn.2d 484 (sanctions analysis referenced)
Christian v. Tohmeh, 191 Wn. App. 709 (standard for reviewing denial of reconsideration)
Tatham v. Rogers, 170 Wn. App. 76 (appearance of fairness / recusal standard)