Judge Joel R Wohlfeil, Case Number: 37-2021-00000121-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2021-00000121-CU-PO-CTL, Date: 2024-05-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 30, 2024

05/03/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00000121-CU-PO-CTL HILDEBRAND VS OVERTURE SAN MARCOS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Reconsideration, 02/23/2024

The Motion (ROA # 135,140) of Plaintiff NANCY HILDEBRAND ('Plaintiff') for reconsideration of the Court's February 13. 2024 order (ROA # 132) is DENIED.

The cross-request of Defendants GS AA SAN MARCOS OWNER, LLC, GREYSTAR CALIFORNIA, INC.

and SHERI BLEAU ('Defendants') for an award of monetary sanctions is DENIED.

A motion for reconsideration under Code of Civil Procedure section 1008 requires a showing of new or different facts, circumstances, or law.

A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 212.

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. at 212, 213.

The moving party is required to 'make a threshold showing of diligence which has long required an explanation of why the newly discovered matter was not presented earlier.' Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 688 (internal quotes omitted).

'As we discuss further below, the trial court denied a motion for reconsideration based on evidence that should have been included in the initial opposition to the motion but was not, and thus was not a proper basis for reconsideration.' Morris v. AGFA Corp. (2006) 144 Cal. App. 4th 1452, 1460.

Section 1008 governs reconsideration of court orders whether initiated by a party or the court itself, it is the exclusive means for modifying, amending or revoking an order, and its requirements are jurisdictional. Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1499.

Plaintiff submits the declaration of counsel in support of this Motion. This declaration outlines three areas on which this Motion is based; i.e., three circumstances that resulted in the untimely discovery responses, the failure to oppose the previous motion and the failure to abide by this Court's prior discovery orders. First, the inability of counsel to communicate with his client due to the client's ongoing medical issues. Second, counsel's own medical issues impeding his ability to participate in or manage this litigation. Third, staffing issues with respect to an associate attorney that also impeded counsel's Calendar No.: Event ID: TENTATIVE RULINGS

3104505 CASE NUMBER: CASE TITLE: HILDEBRAND VS OVERTURE SAN MARCOS [IMAGED] 37-2021-00000121-CU-PO-CTL ability to participate in or manage this litigation.

This Motion is not persuasive because all of the 'new' facts and circumstances referenced above would have been known to plaintiff and Plaintiff's counsel before the January 19, 2024 hearing on the Motion seeking to impose the subject discovery sanctions. Alternatively, counsel's exercise of reasonable diligence would have allowed for the discovery of this information prior to the January 19, 2024 hearing.

Counsel's declaration states that he re-established contact with his client on November 5, 2023.

Plaintiff's medical issues should have been discovered and addressed prior to the filing date for Plaintiff's opposition.

Counsel would have been aware of his own medical issues and staffing shortage as they were happening. Counsel should have raised these issues when the original opposition was due to be filed.

At page 11 of the moving brief, Plaintiff asks for 'alternative' relief pursuant to Code of Civil Procedure section 473(b). However, the Court cannot address the merits of this alternative relief because it is not set forth within the notice of Motion. The Notice of Motion is styles only as a 'motion for reconsideration.' Defendants' opposition brief requests 'an order granting monetary sanctions against Mr. Janfaza and his firm, Law Offices of Ilan N. Rosen Janfaza, A.P.C., pursuant to Code of Civil Procedure sections 1008, subdivision (d), and section 128.7 for the reasonable costs and attorney's fees incurred in connection with opposing this Motion.' A reply brief challenging this request has not been filed.

'A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7 ....' Code Civ. Proc. 1008(d). Section 128.7 addresses an attorney's certification that a pleading is not being presented for an improper purpose, that the claims, defenses and other legal contentions are warranted by existing law, and that the factual contentions have evidentiary support.

Section 128.7(c)(1) requires that a 'motion for sanctions under this section shall be made separately from other motions or requests .... Notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion ... the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.' This request for sanctions was not made as a separate motion and a safe harbor period was not provided. As a result, this request is denied because it is procedurally improper.

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