Judge: John C. Gastelum, Case: 22-01252912, Date: 2023-12-07 Tentative Ruling

Motion for Reconsideration 

Tentative Ruling:  Defendant Alexander Wilk (“Defendant”) filed a Motion for Reconsideration, asking the court to reconsider its ruling on June 20, 2023.  Defendant also moves alternatively for relief from the June 20, 2023 order.  The Motions are DENIED.

A motion for reconsideration must be filed within 10 days of service of notice of entry of the order in question.  (Code Civ. Proc., § 1008(a).)  A motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling.  (Code Civ. Proc., § 1008 subd. (a).)  The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown.  (Code Civ. Proc., § 1008 subd. (a).)  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 Court (2005) 135 Cal. App. 4th 206, 212–13.)  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, 213.)

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) 

Here, Defendant’s declaration does not provide the specific information set forth in Code of Civil Procedure section 1008(a).  Also, Defendant has not presented sufficient new facts not previously considered.  Defense counsel only contends she was not actually served with the moving papers.  However, Defense counsel provides no information regarding the requests for production at issue and why the court’s ruling on the requests should be different.

Accordingly, the Motion for Reconsideration is DENIED.

Next, it appears that Defendant moves alternatively for a Motion for Relief from the June 20, 2023 order.  Pursuant to Code of Civil Procedure section 473:

“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.”  (Code Civ. Proc., § 473, subd. (b).)

“The purpose of the statute is to relieve the hardship on those parties who have lost their day in court solely because of counsel’s inexcusable failure to act.”  (Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 303.)

“The moving party has a double burden: He must show a satisfactory excuse for his default, and he must show diligence in making the motion after discovery of the default.”  (Huh v. Wang (2007) 158 Cal.App.4th 1406, 1420, as modified (Jan. 16, 2008).)

Here, defense counsel seeks relief from the June 20, 2023 order and an opportunity to be heard on the motion to compel at issue but failed to file the proposed opposition to the motion.  Section 473 expressly states that any application for relief under the section must be accompanied by a copy of the pleading proposed to be filed therein – otherwise, the application shall not be granted.

Accordingly the Motion for Relief is DENIED.

The Court declines to consider all new points, arguments, and evidence presented for the first time on reply.  (See Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538.)

Plaintiff to give notice.