Judge: David A. Hoffer, Case: 30-2022-01276602, Date: 2023-07-31 Tentative Ruling

A)  Motion for Sanctions

Plaintiffs GMDownunder, Inc., and Allen Morris’ (“Plaintiffs” together) Motion for Sanctions (“MFS”) against defendant R. Lynn Bowles (“Defendant”) and his counsel of record is DENIED.

Plaintiffs bring the MFS pursuant to Civ. Proc. Code §§ 128.5 and 128.7.  As an initial note, those code sections each require that motions under them be filed separately from other motions.  (Civ. Proc. Code §§ 128.5(f)(1)(A) and 128.7(c)(1).)  Although the provisions of the code indicate that it is mandatory that the motions be filed separately, the court has not found a case that supports denial of such motions when they are combined together, nor has Defendant cited to such a case.  This issue does not support denying the motion on its own.

That being said, there are additional issues with the MFS that required it to be denied.  The first is that the notice is improper and violates Defendant and his counsel’s due process in that it does not specify what type of sanctions are being sought.  “Adequate notice prior to imposition of sanctions is mandated not only by statute, but also by the due process clauses of both the state and federal Constitutions. (Cal. Const., art. I, § 7; U.S. Const., 14th Amend.).”  (O'Brien v. Cseh (1983) 148 Cal. App. 3d 957, 961; Weil & Brown California Practice Guide, Civil Procedure Before Trial (2023) para. 9:1092.)  Lack of proper notice supports denying this MFS.

Additionally, Plaintiffs failed to provide any evidence in support of the MFS that the disqualification motion was brought in subjectively bad faith or from improper motives, or for the sole purpose of harassing Plaintiffs.  (Garcia v. Sterling (1985) 176 Cal. App. 3d 17, 22–23.).  Moreover,  although the underlying disqualification motion was denied and the court noted that the motion “may” have been brought for tactical reasons, a review of the motion shows that it was largely based on a disagreement about whether attorney Shirwo’s testimony was, in fact, genuinely needed in the trial.  On this issue, the defendant’s position, though not accepted by the court, was clearly non-frivolous.     

For those reasons, the MFS is denied.

B)   Motion for Reconsideration

Plaintiffs’ Motion for Reconsideration of the court’s 03/20/23 order granting attorney Sharon A.L. Brass’ (“Brass”) pro hac vice (“PHV”) status is DENIED.

A party moving for reconsideration of a prior motion must base the request upon new or different facts, circumstances, or law.  (Civ. Proc. Code § 1010.)  When a motion is based upon new or different facts, the moving party must provide a satisfactory explanation for the failure to produce that evidence at an earlier time.  (Shiffer v. CBS Corp. (2015) 240 Cal. App. 4th 246, 255. )  “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.”  (New York Times Co. v. Superior Ct. (2005) 135 Cal. App. 4th 206, 212–13.)  Granting a motion to reconsider is improper and in excess of a court’s jurisdiction where the “new facts” were within the moving party’s possession at the time of the underlying motion.  (Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 689-91.)

Here, Plaintiffs allege the “new facts” are that Brass improperly practiced law in California prior to pro hac vice admission.  (Bus. & Prof. Code §§ 6125 and 6126; Shirwo Decl., 8:9-9:7, Exs. 1-6.)  Based on the evidence produced by Plaintiffs and defendant R. Lynn Bowles (“Defendant”), it is apparent that Plaintiffs knew or should have known the “new facts” at the time they filed their opposition to the PHV and by the time of the hearing, yet Plaintiffs failed to produce said information prior to the court’s ruling. 

Plaintiffs have failed to meet their burden to provide a satisfactory explanation for failing to produce said evidence by the time of the hearing.  As such, the court declines to grant this motion.

Defendants are ordered to give notice of these rulings.