Judge Barbara M. Scheper, Case Number: 21STCV31909, Date: 2023-07-10 Tentative Ruling

Judge: Barbara M. Scheper, Case: 21STCV31909, Date: 2023-07-10 Tentative Ruling

Case Number: 21STCV31909 Hearing Date: July 10, 2023 Dept: 30

Dept. 30

Calendar

Lucich vs. Kwok, et. al., Case No. 21STCV31909

Tentative Ruling re: Defendant’s Motion for Reconsideration

Defendant Wai King Kwok (Wai King), through her guardian ad litem Rose Kagel Kwok, moves for reconsideration of the Court’s May 23, 2023, ruling denying Wai King’s Motion for Protective Order. The motion is denied.

“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 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.” (Code Civ. Proc. § 1008, subd. (a).)

Trial courts have broad discretion in ruling on motions to reconsider a prior order. (Monroy v. City of Los Angeles (2008) 164 Cal.App.4th 248, 265.) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

Defendants’ Motion for Protective Order sought a protective order directing that the noticed deposition of Wai King not take place, on the basis that Wai King suffers from advanced dementia and is unable to competently testify. As evidence of Wai King’s condition, Defendants presented a note from her doctor stating that she has “[d]ementia that affects her memory” and “gets confused at times and does not have the ability to testify in court.” (Motion for Protective Order, Ex. B.) Wai King’s doctor stated in another note that, “[d]ue to Mrs. Kwok’s advanced dementia along with her FAST Score 7B and PPS Score of 30 percent. The patient is unable to make any decisions for her care and well-being.” (Stahl Supp. Decl. ¶ 3, Ex. A.)

The Court denied the Motion for Protective Order on May 23, 2023, due to Defendants’ failure to present sufficient evidence as to the severity of Wai King’s condition. While Defendants sought to rely on Wai King’s FAST and PPS scores as evidence of her advanced impairment, Defendants produced no admissible evidence explaining the meaning of the tests or their scoring. Defendants’ evidence otherwise consisted only of the doctor’s statement that Wai King’s dementia affects her memory and sometimes causes confusion. The Court found this evidence insufficient to show that the deposition would cause Wai King “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” (Code Civ. Proc. § 2025.420, subd. (b).)

Defendants now argue that the Court should reconsider its ruling on the protective order, first, based on the new fact that Plaintiff’s counsel misrepresented the necessity of taking Wai King’s deposition. Plaintiff’s counsel stated at the May 26 hearing that Wai King’s deposition was needed to obtain information to oppose her motion for summary judgment, but Defendants represent that Plaintiff’s counsel, in subsequent communications, did not mention the deposition or show any intention to take it. (Burns Decl. ¶¶ 2-4.) Plaintiff’s Opposition disputes this account, and states that Wai King’s deposition had since been noticed for June 20, 2023. (Campbell Decl. ¶ 2, Ex. A.)

Accepting, for purposes of argument, Defendants’ account of the parties’ meet and confer conversations, these facts still would not warrant reconsideration. A “new fact” must “relat[e] to the merits of the underlying motion.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The parties’ subsequent conversations are irrelevant to the underlying reason for the Court’s ruling on the motion for protective order, which was Defendants’ failure to produce evidence showing that Wai King’s deposition would be unduly oppressive or burdensome due to her medical condition.

Defendants also seek reconsideration based on further evidence of Wai King’s medical condition; with this motion, Defendants have attached two exhibits that explain the meaning of and scoring for the FAST and PPS tests. (Burns Decl. ¶¶ 8-9, Ex. B, Ex. C.) The exhibits do not constitute “new facts” for reconsideration, as Defendants have not provided any explanation of their failure to present the evidence in the original Motion for Protective Order. (See New York Times Co., 135 Cal.App.4th at 213.) Accordingly, the motion for reconsideration is denied