Judge: Anne Hwang, Case: 21STCV02613, Date: 2023-12-08 Tentative Ruling

Case Number: 21STCV02613    Hearing Date: December 8, 2023    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 January 22, 2021, Plaintiff filed a complaint against Defendant Ampam Parks Mechanical Inc. Defendant filed an answer on March 11, 2021. The matter was set for a Final Status Conference on August 29, 2023 (“FSC”). Plaintiff’s counsel did not appear. On that date, the Court set an Order to Show Cause Re: monetary sanctions against all counsel for failure to comply with the 8^th Amended General Standing Order to be ready for the final status conference (“OSC”). Counsel for defendant was ordered to give notice to Plaintiff. (See Minute Order Dated August 29, 2023.) A notice of ruling and proof of service were filed on August 29, 2023. Defendant filed a declaration in response to the order to show cause. On September 12, 2023, Plaintiff again failed to appear and was ordered to pay monetary sanctions in the amount of $250. (See Minute Order Dated September 12, 2023.)

Plaintiff now moves for reconsideration of the Court’s monetary sanction 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

Plaintiff argues that counsel had no notice of the OSC and the parties had agreed to request a trial continuance on September 5, 2023. (Keshmiri Dec.¶ 2.)[1]

Plaintiff’s counsel does not explain the initial failure to appear at the August 29, 2023 FSC when the OSC was set. Plaintiff argues that counsel had no notice of the OSC, but Defendant filed a proof of service of notice to counsel. Moreover, as to the OSC itself, Plaintiff does not explain why counsel did not promptly return the stipulation to continue to counsel for Defendant for filing in advance of the FSC. (See Tusa Dec. in response to OSC ¶ 8-9 [explaining that defense counsel mailed the stipulation on 8/21/23 and plaintiff’s counsel did not return it until 8/28/23].) Plaintiff’s counsel refers to a stipulation to continue trial that was filed after the FSC, which does not explain the failure to be prepared for the FSC itself.

Nonetheless, although there is a presumption of notice given the proof of service of notice of the OSC, the Court vacates the order for monetary sanctions on September 12, 2023 in light of counsel’s sworn testimony that counsel did not receive notice of the OSC. Counsel is admonished to be prepared and in compliance with the Court’s orders, including in particular the 8^th Amended Standing Order for Procedures Governing PI Hub Courts, and to appear in court when ordered.

CONCLUSION AND ORDER

Therefore, the Court GRANTS Plaintiff’s Motion for Reconsideration. The September 12, 2023 order for monetary sanctions against counsel for Plaintiff is vacated.

Plaintiff to provide notice and file a proof of service of such.