Judge: Anne Hwang, Case: 20STCV44263, Date: 2023-12-01 Tentative Ruling

Case Number: 20STCV44263    Hearing Date: January 17, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

On December 1, 2023, Defendants Ricky Max Munder and Dawn Caruso’s (“Defendants”) motion for an OSC re Contempt, was denied. (Min. Order, 12/1/23.) The motion asked the Court to hold a contempt proceeding for non-party Elfrid Osorio (“Osorio”), for failing to comply with a deposition subpoena, issued on June 17, 2021. At the hearing on the motion, Defendants did not appear. (Ibid.) On December 7, 2023, Defendants filed and served a notice of the ruling.

On December 13, 2023, Defendants filed the instant motion for reconsideration of the Court’s order.

LEGAL STANDARD

Code of Civil Procedure section 1008 provides, in pertinent part:   

“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.  

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.   

… 

(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”  

(Code Civ. Proc. section 1008, subds. (a), (b), (e).)   

A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, the burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].)¿¿A 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.)  

If the above statutory requirements are granted, reconsideration should be granted. However, a court is not required to change its decision upon reconsideration. (Corns v. Miller (1986) 181 CA3d 195, 202, 226 CR 247, 251.) Although parties may move for reconsideration only as authorized by Code of Civil Procedure section 1008, the statute “do[es] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel¿(2005) 35 Cal.4th 1094, 1107.)  

DISCUSSION

Defendants argue that counsel for Defendants attempted to appear remotely for the December 1, 2023 hearing, but there was an issue with the connection. Had counsel appeared, Defendants argue they could have rebutted the grounds for the ruling.

As an initial matter, according to the Declaration of Susan Rousier, she discovered that the Court had adopted the tentative ruling on December 1, 2023. (See Rousier Decl. ¶ 5.) Defendants do not address how this affects the ten-day limit for bringing a motion for reconsideration. In addition, Defendants do not address service on non-party Osorio of this motion for reconsideration.

Nonetheless, the Court takes judicial notice of an October 19, 2023 proof of service filed separately from the September 13, 2023 motion for contempt. Defendants have demonstrated that the initial motion was personally served on Osorio.

However, Defendants essentially seek a contempt order for Osorio’s failure to appear at an August 4, 2021 deposition. Contempt proceedings are punitive and the affidavit is the charging document. (See Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1288 [“Although a contempt may arise, as here, in the context of a civil action, a contempt proceeding is punitive and separate from the cause out of which it arises [citation omitted], and it is for this reason that every ‘i’ must be dotted and every ‘t’ crossed.”].) As such, the affidavit must allege all of the necessary elements. Those elements here include, among other things, the deponent’s ability to comply with the court order and willful failure to comply. The affidavit does not allege those elements. Rather, the affidavit describes actions taken by counsel, such as sending letters, and subpoenas that do not have proofs of service.[1] The affidavit as currently drafted does not provide sufficient notice of all of the elements that must be proved, including deponent’s ability to comply with the court order and willful failure to comply. As such, it would be insufficient to sustain a finding of contempt. (Van v. Language Line Services, Inc. (2017) 8 Cal.App.5th 73, 82 [“Punishment for contempt ‘can only rest upon [a] clear, intentional violation of a specific, narrowly drawn order. Specificity is an essential prerequisite of a contempt citation.].)

In their motion for reconsideration, Defendants argue that the motion itself provides arguments regarding Osorio’s ability to comply and willful failure to comply. (Motion at pp. 7-8.) However, the allegations need to be contained in the affidavit itself, i.e., the charging document, not a separate document. In addition, the motion discusses depositions for which there is no proof of personal service of the notices. (See Motion at p. 7 [discussing deposition notices of depositions to be conducted by zoom].)[2]

In the motion for reconsideration, counsel argues that at the hearing, they would have asked the Court for a short continuance to add the missing information to the affidavit and to provide a proposed order. However, Osorio would need notice of the revised proposed affidavit. Accordingly, the Court would have required a new, properly served motion.

CONCLUSION AND ORDER

Therefore, the Court DENIES Defendants’ Motion for Reconsideration.

Defendants shall provide notice and file a proof of service of such.