Judge: Gary Y. Tanaka, Case: 19TRCV00712, Date: 2022-09-07 Tentative Ruling

Case Number: 19TRCV00712    Hearing Date: September 7, 2022    Dept: B

PROCEEDINGS

            Ashraf Youssef v. Malak A. Rezekalla, et al.

19TRCV00712

1. Ashraf Youssef’s Motion for Reconsideration

2. Malak A. Rezekalla’s Motion to Compel Attendance at Deposition and for Sanctions    

    

   TENTATIVE RULING

    

               Ashraf Youssef’s Motion for Reconsideration is denied.

    

               Malak A. Rezekalla’s Motion to Compel Attendance at Deposition and for Sanctions is granted.  

    

               Background

    

               Plaintiff filed his Complaint Filed on August 14, 2019. Plaintiff alleges the following facts.  Plaintiff sues on a promissory note.  A demand was made on Defendant for payment pursuant to terms of the promissory note, but Defendant has refused to pay. Plaintiff alleges the following causes of action: 1. Breach of Contract – Promissory Note.

    

               On February 14, 2022, Plaintiff’s ex parte application to continue the trial and to reopen discovery and extend the discovery cutoff date to correspond to the new trial date was denied.  Plaintiff failed to appear for the ex parte application.  On March 21, 2022, Defendant’s motion for sanctions was granted.

    

               Motion for Reconsideration

    

               CCP § 1008(a) states: “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.”  In addition, the party seeking reconsideration must provide not just new or different facts, circumstance, or law, but a satisfactory explanation for the failure to produce it at an earlier time. See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.

    

               Pursuant to CCP § 1008 and CCP § 473(b), Plaintiff moves for reconsideration of the March 21, 2022 order granting monetary sanctions, in favor of Defendant and against Plaintiff.  As the ground for the motion, Plaintiff states that the failure to attach certain communications with opposing counsel in the opposition was due to attorney error.

    

               Plaintiff’s motion is denied because Plaintiff failed to provide new facts or circumstances to warrant reconsideration of the Court’s prior order.  Instead, Plaintiff simply reargues the same facts that were made in the original motion.  A simple review of the Court’s minute order of March 21, 2022 reveals that Plaintiff already presented these very same arguments and the Court considered these arguments when issuing its ruling.  In addition, the purported omitted documents do not constitute new facts as these facts, as admitted by Plaintiff, were already part of the Court’s records with the ex parte application. Also, Plaintiff fails to provide any explanation as to why the purported “new” facts (again, as stated above, in fact, the facts were not “new”) were not presented earlier.  Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.

    

               Plaintiff’s citation to CCP § 473(b) is also unavailing. CCP § 473(b) states, in relevant part: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.  . . .  Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. . . .”

    

               First, Plaintiff’s reference to “attorney error” implicates the mandatory provision of Section 473(b).  However, the mandatory provision only applies to a default judgment or dismissal.  Second, the discretionary provision of Section 473(b) is not available because Plaintiff failed to establish that the attorney’s purported error in not including certain documents with the opposition constituted excusable neglect.  In any event, the Court considered, in detail, the arguments made by Plaintiff at the original hearing when issuing its ruling.  Finally, even in reviewing the purported new documents, the correspondences, again, only reveal that Defendant may have agreed to a trial continuance, but there is no explicit showing that Defendant agreed to reopen discovery.  None of the documents that are now attached with the motion for reconsideration would justify reconsidering the Court’s prior order.

    

               In addition, none of the purported new facts address another reason that the Court granted Defendant’s motion for sanctions.  The Court indicated that simply because another matter may have been scheduled by Plaintiff’s counsel on the same date as the ex parte application, that did not provide good cause to simply fail to appear for the application. Counsel could have made arrangements for another attorney to appear or taken the application off calendar and reset it for another date.  By failing to do so, Defendant was required to take the time and expense to appear on that date.

    

               Therefore, for the foregoing reasons, Plaintiff’s motion for reconsideration is denied.

    

               Motion to Compel Deposition

   
   

               The party noticing the deposition may move for an order compelling appearance at the deposition and production of documents, pursuant to the deposition notice, from the party deponent who fails to appear or produce materials requested in the deposition notice, and who has not served a valid objection under § 2025.410(a).  CCP § 2025.450(a). 

    

               “The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance.”  CCP § 2025.450(b)(2).

    

               Meet and Confer

    

               Defendant set forth a meet and confer declaration in compliance with CCP § 2025.450(b)(2) and CCP § 2016.040.  (Decl., Adam M. Satnick, ¶¶ 4-10.)

    

               Motion to Compel Deposition and for Sanctions

    

               Defendant moves for an order compelling Plaintiff to attend his deposition and provide testimony.  The motion is made on the ground that Plaintiff has refused to appear for his deposition.  Defendant also seeks sanctions against Plaintiff and/or his attorney in the sum of $6,095.00.

    

               Plaintiff filed an opposition and argued two grounds – untimeliness and improper service of the notice of deposition.  Both these arguments are not meritorious.  First, the motion is timely made as Section 2025.450 does not impose a time limitation.  Plaintiff relies on the wrong statute, Section 2025.480, which only applies to motions to compel answers at deposition when a deponent appears for deposition but does not answer certain questions at the deposition.

    

               Also, Defendant served the notice of deposition properly.  Exhibit A to the motion evidences the notice of deposition and a facially valid proof of service was attached which indicates that service was properly effectuated pursuant to CCP § 1011.  In the absence of the attorney, service by sliding a document through the door is sufficient service under CCP § 1011.  January v. Superior Court (1887) 73 Cal. 537.  Plaintiff fails to provide facts to refute Defendant’s evidence of proper service.  Plaintiff counsel does not set forth facts to show that he was, in fact, in the office at the time that the notice was served.  Plaintiff argues that the notice should have been taped at the door rather than slid under the door. There is no authority to show that sliding the documents under the door constitutes improper service while taping the documents constitutes proper service.  Finally, Plaintiff’s counsel does not, at all, indicate that he did not receive the notice in a timely manner.

    

               Therefore, Defendant’s motion to compel deposition is granted. Plaintiff is ordered to appear for his properly noticed deposition at a reasonable date and time to be determined by Defendant.

    

               Sanctions

    

               Plaintiff and his attorney are sanctioned the total sum of $5,149.75 to be paid to moving party within 30 days of this date.  The fees were calculated in the following manner. The fees sought by Defendant, which includes $3,212.50 in fees and costs incurred due to Plaintiff’s failure to appear for deposition, and $1,937.25 in fees and costs incurred in making this motion (calculated at 5 hours to prepare and appear at $375/hour, plus $62.25 filing fee) were awarded.

    

               Therefore, Defendant’s motion for to compel deposition and for monetary sanctions is granted.

    

               Defendant is ordered to give notice of this ruling.