Judge Jill Feeney, Case 21STCV01230 2022-09-30 Tentative Ruling

On January 12, 2021, Plaintiff Richard Gliksman (“Plaintiff’) filed a Complaint against Defendants Paula Marie Stern, Lyft, and Does 1-10 inclusive, (collectively, “Defendants”) alleging damages for personal injury. This action arises out of a motor vehicle accident that occurred on January 11, 2019.

On May 4, 2022, the Court granted three motions to compel further and ordered Plaintiff to produce further responses within 20 days. These motions were unopposed. Plaintiff did not attend the hearing and did not attend the mandatory IDC.

On July 1, 2022, the Court continued the hearing on Stern’s motion for terminating sanctions to allow Plaintiff to comply with the Court’s previous orders compelling Plaintiff to respond to Stern’s discovery requests.

Plaintiff’s counsel argues that Plaintiff’s motion for reconsideration should be granted because he was ill and fell unconscious at the time of the hearing. Counsel also argues that dismissal of Stern was highly prejudicial because Stern has already admitted liability and Defendant Lyft has already paid for property damage. Plaintiff further argues that Counsel attempted to appear at the July 1, 2022 hearing and could not be heard. After the hearing, Counsel called the Court and was heard. Plaintiff contends that he would be entitled to summary judgment because the only issues remaining were proof of injuries and the amount of property damage. Lastly, Plaintiff argues Lyft has waived terminating sanctions by serving five new discovery requests on Plaintiff.

Defendant Stern points out that Defendant Lyft has not been dismissed. Stern also points out that terminating sanctions were not granted on July 1, 2022, but on August 5, 2022 to give Plaintiff time to comply with the Court’s previous orders regarding discovery responses. Terminating sanctions were only granted after Plaintiff failed to appear on August 5, 2022.

“(a) 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 an 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.

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion…

(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, 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.” (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].)

As an initial matter, the Court notes that Defendant Lyft was not dismissed from this action. Plaintiff’s arguments concerning Lyft are moot because Lyft is still a Defendant in this action. Terminating sanctions were only granted as to Defendant Stern.

Plaintiff’s motion for reconsideration is timely. Motions to reconsider must be filed within 10 days after service upon the party of written notice of entry of the order. (Code Civ. Pro. 1008 subd. (a).) Here, Plaintiff filed his motion for reconsideration seven days after the hearing on Stern’s motion for terminating sanctions.

Plaintiff fails to show that there are different facts, circumstances, or law that would warrant reconsideration of the court’s decision with respect to Stern’s motion for terminating sanctions. Plaintiff’s argument that Stern’s dismissal would be prejudicial because there are no issues as to Stern’s liability is not predicated on any different facts, circumstances, or law. Plaintiff does not contend that the discovery responses were actually served on Defendant Stern. Moreover, Plaintiff’s argument that Lyft’s requests for discovery waived Stern’s terminating sanctions is without any merit because Lyft is still a party to this action.

Plaintiff also argues that he failed to appear at the hearing on terminating sanctions because he was ill at the time of the August 5, 2022 hearing. Again, this is not a different fact, circumstance, or law, that would warrant reconsideration. Plaintiff may wish to file a motion to set aside dismissal pursuant to Code Civ. Procedure section 473, subd. (b).