Judge Alison Mackenzie, Case Number: 23STCV19063, Date: 2023-12-05 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV19063, Date: 2023-12-05 Tentative Ruling

Case Number: 23STCV19063 Hearing Date: February 9, 2024 Dept: 55

NATURE OF PROCEEDINGS: Plaintiff’s Motion For Reconsideration Of The Court’s Order Granting Defendant’s Motion To Compel Jeet Jogani’s Deposition.

The motion for reconsideration of the 12/5/23 order compelling the deposition, is denied.

Plaintiff shall produce Jeet Jogani to appear for examination at a telephonic deposition, within ten days of the issuance of this order.

Background

On 8/10/23, VIEW POINTE LEEWARD, LLC (“Plaintiff”) filed an Unlawful Detainer Complaint against ANSELMO SANCHEZ, alleging service upon Defendant of a notice to pay rent or quit. Defendant filed an Answer alleging that Plaintiff had breached the warranty of habitability by failing to make repairs and the amount in the notice to pay rent or quit included rent not yet due.

Defendant previously filed a motion to compel Plaintiff’s managing agent Jeet Jogani’s deposition, and to impose $1,625.00 in sanctions. Plaintiff filed no written opposition, but orally argued at the hearing on 12/5/23. The Court granted the motion to compel, concluding that Plaintiff’s only objection-that Mr. Jogani lacks personal knowledge of the facts in the case- was not well-taken, and Plaintiff improperly failed to produce Mr. Jogani for his deposition.

Now, Plaintiff seeks reconsideration of the 12/5/23 order compelling the deposition, arguing that Mr. Jogani is not a party and not party-affiliated in relation to Plaintiff View Pointe Leeward LLC. Plaintiff contends Mr. Jogani is an apex deponent who lacks unique or specialized knowledge not attainable by less intrusive or alternative means.

Legal Standard

Code of Civil Procedure Section 1008 provides that a party may move for reconsideration of an order “based upon new or different facts, circumstances, or law.” CCP § 1008(a). The moving party must state such new or different facts, circumstances, or law in an affidavit, see id., “which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence.” Forrest v. Dept. Of Corps. (2007) 150 Cal. App. 4th 183, 202, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP §1008 tightened diligence requirements).

Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1500. A new fact that is collateral to the merits, such as counsel’s desire to argue further, does not warrant reconsideration. Id., 32 Cal. App. 4th at 1500; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690.

Analysis

Plaintiff seeks reconsideration of the 12/5/23 order based on its contention that Mr. Jogani is a corporate officer of the managing member of Plaintiff and an apex deponent. But this information does not constitute “new or different facts” that Plaintiff did not have available to it at the time of the motion. Plaintiff has no explanation for why it could not have produced information about Mr. Jogani’s job title and/or job responsibilities in opposing the motion. Plaintiff failed to even file a written opposition to the motion, constituting a waiver of objections to the motion. The Court nevertheless permitted counsel to present argument at the hearing and counsel did not present any facts regarding Mr. Jogani during the argument. See Forrest v. Dept. Of Corps. (2007) 150 Cal. App. 4th 183, 202 (in reconsideration motion, new evidence must be such that the moving party could not, with reasonable diligence, have discovered or produced with prior motion).

Furthermore, the motion’s evidence is equivocal and weak about Mr. Jogani’s status with Plaintiff. There is no declaration from Mr. Jogani, just declarations from other employees stating Mr. Jogani was not involved in the “day-to-day operations” for Plaintiff. (Delgaldillo Decl., ¶ 5; Rajakumer Decl., ¶ 5.) Such testimony hardly establishes that Mr. Jogani is a corporate officer, let alone an apex deponent.

Even assuming, arguendo, that Mr. Jogani is an apex executive, nevertheless the motion to compel the deposition provided ample evidence of Mr. Jogani’s personal knowledge of Plaintiff’s operation, his affiliation with Plaintiff, and Mr. Jogani’s active involvement with issues regarding tenants. (Medina Decl., filed 11/27/23, Exs. F (Carlos Delgadillo depo. excerpts) and G (emails involving deponent).) Thus, ample evidence supports the Court’s conclusion that Plaintiff’s failure to produce Mr. Jogani for his deposition had no merit and warranted an order compelling his deposition.

Finally, Plaintiff cannot rely on Code of Civil Procedure Section 473 as the basis for reconsideration; the requirements of Code of Civil Procedure Section 1008 must be satisfied. Gilberd, 32 Cal. App. 4th at 1500-01; Even Zohar Constr. & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal. 4th 830, 844. Moreover, Plaintiff counsel’s schedule or failure to make a better argument (or any argument) at the time of the motion does not constitute a basis for relief. Ambrose v. Michelin North America, Inc. (2005) 134 Cal. App. 4th 1350, 1355 (counsel unsuccessfully argued the stresses of a busy practice, the hurry to meet deadlines, and obligations of other pending litigation constituted basis for Section 473 relief).

Therefore, the motion is denied.