Judge: Daniel M. Crowley, Case: 20STCV34681, Date: 2022-08-25 Tentative Ruling
Case Number: 20STCV34681 Hearing Date: August 25, 2022 Dept: 28
Defendant B&V Enterprises, Inc. And Fermanian Properties-Glendale, LLC’s Motion for Reconsideration
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On September 11, 2020, Plaintiff Diana Aslan (“Plaintiff”) filed this action against Defendant B&V Enterprises, Inc. (“B&V”) for general negligence and premises liability. Plaintiff later amended the complaint to include Defendant Fermanian Properties-Glendale, LLC (“FMG”).
On October 15, 2020, B&V filed its reply. FMG files its answer on July 6, 2021.
On October 25, 2021, Defendants filed a Motion for Summary Judgment to be heard on May 5, 2022. The Court denied the Motion for Summary Judgment.
On May 13, 2022, Defendants filed a Motion for Reconsideration to be heard on July 6, 2022. The Court continued the hearing on the motion to August 25, 2022. On June 22, 2022, Plaintiff filed an opposition.
Trial is scheduled for March 2, 2023.
PARTY’S REQUESTS
Defendants request the Court reconsider their Motion for Summary Judgment on the basis that there was no competent evidence regarding the actual lighting conditions at the time of the incident.
Plaintiff requests the Court deny the motion.
LEGAL STANDARD
CCP §1008 (a) states: “[w]hen 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.”
According to CCP § 2023.030, a court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. As established under CCP § 2023.010, misuse of the discovery process includes, and (h) making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.
DISCUSSION
Defendants filed this motion within 10 days of service of the ruling on the hearing.
Defendants request the Court reconsider the motion on the basis that there is no competent evidence regarding what the actual lighting conditions were like at or near the time of the incident, as the inspection took place over a year after the incident within proper notice. Defendants argue they were only made aware of this fact after the hearing on the motion.
The Court does not find that this constitutes “new or different facts.” Defendants cite that Plaintiff’s expert’s inspection occurred in the parking lot at an unknown time on March 20, 2022, during the pandemic—all of this information was available to Defendants at the time of the initial hearing on the MSJ. Plaintiff’s expert’s declaration provided that his investigation occurred on March 20, 2022. Any arguments regarding the alleged insufficiency of the expert’s examination were available and accessible to Defendants at the time of the hearing—Defendants simply failed to make said arguments, or, the Court considered and found the arguments unpersuasive. All of the law cited in support of Defendants’ argument was also accessible at the time of the hearing.
Defendants also argue that Defendants never received notice of the expert’s inspection, and thus all of the evidence should be excluded. Counsel argues that she only became aware of this after the hearing on the motion because she was unable to contact prior Defendants counsel. However, Defendants could have raised this issue without confirmation or while checking with another attorney working on the case. Additionally, as noted in Plaintiff’s reply, the inspection took place prior to the filing of this motion.
Based on the above, the Court denies the motion.
CONCLUSION
Defendant B&V Enterprises, Inc. And Fermanian Properties-Glendale, LLC’s Motion for Reconsideration is DENIED.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.