Judge: Gary Y. Tanaka, Case: 20TRCV00641, Date: 2022-12-13 Tentative Ruling


Case Number: 20TRCV00641    Hearing Date: December 13, 2022    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

 

 

 

Honorable Gary Y. Tanaka                                                                                 Tuesday, December 13, 2022

Department B                                                                                                                             Calendar No. 8

 

 

PROCEEDINGS

 

31st Street HB Investment Group, LLC v. Foreverboard California, Inc., et al. 

20TRCV00641

1.      31st Street HB Investment Group, LLC’s Motion for Reconsideration and Motion for Relief Out of Counsel’s Mistake, Inadvertence, or Excusable Neglect Regarding its Motion to Quash and/or Motion for Protective Order        

 

TENTATIVE RULING

 

            31st Street HB Investment Group, LLC’s Motion for Reconsideration and Motion for Relief Out of Counsel’s Mistake, Inadvertence, or Excusable Neglect Regarding its Motion to Quash and/or Motion for Protective Order is denied.

 

            Background

 

Plaintiff filed the Complaint on September 15, 2020. Plaintiff alleges the following facts. Plaintiff purchased drywall from Defendant. Once installed, the drywall retained moisture from the air, deteriorated, and discharged moisture onto the adjacent components of Plaintiff’s home. Plaintiff alleges causes of action for: 1. Negligence; 2. Strict Products Liability; 3. Breach of Implied Warranty of Fitness; 4. Breach of Implied Warranty of Merchantability.

 

Defendant filed a Cross-Complaint alleging causes of action for: 1. Implied Indemnity; 2. Partial Indemnity; 3. Contribution; 4. Declaratory Relief.

 

On July 21, 2022, Plaintiff’s Motion to Quash and/or for Protective Order was denied.

 

Motion for Reconsideration

 

CCP § 1008(a) states: “When an application for an order has been made to a 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 July 21, 2022 order denying Plaintiff’s motion to quash and/or motion for protective order as the deposition subpoena of Diehl Group Architects.

 

Plaintiff’s motion is denied because Plaintiff failed to provide new facts, circumstances, or law to warrant reconsideration of the Court’s prior order.  Instead, even moving party appears to concede that, rather than seeking reconsideration of the Court’s prior order, Plaintiff seeks “clarity” as to the order of the Court. (Memorandum of Points and Authorities, page 3, lines 20-25.)  In addition, Plaintiff simply reargues and presents the same authorities that were already set forth in the original motion.  Also, Plaintiff fails to provide any explanation as to why the purported “new” facts (again, as stated above, in fact, no new or different facts were presented) 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. . . .”  Again, as noted above, Plaintiff does not even identify any mistake, inadvertence, surprise, or excusable neglect with respect to the original hearing.  Instead, the motion is directed, apparently, as to Plaintiff’s confusion with respect to the minute order.

 

As to this alleged confusion, the Court makes no comment other than to state that this Court ruled upon the motion that was in front of the Court on July 21, 2022.  The Court’s reasoning for denying the motion to quash and/or for protective order was sufficiently detailed.  The Court has no further obligation to clarify or explain its reasoning.  In addition, as to any purported statements that the Court or the parties’ counsel may have made at the hearing date, such statements were not part of the official order of the Court and has no bearing on the efficacy of the Court’s order.

 

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

 

Defendant’s request for monetary sanctions against Plaintiff is denied because Defendant has failed to demonstrate compliance with the mandatory procedural requirements of CCP § 128.7. “[T]he requirements of section 128.7 do apply to sanctions imposed under section 1008, subdivision (d).” Moofly Productions, LLC v. Favila (2018) 24 Cal.App.5th 993, 997.

 

Defendant is ordered to give notice of this ruling.