Judge: Kristin S. Escalante , Case: 21STCV37196, Date: 2023-06-22 Tentative Ruling
Case Number: 21STCV37196 Hearing Date: June 22, 2023 Dept: 24
NATURE OF PROCEEDINGS: Hearing on Motion for
Reconsideration
The
above-captioned matters are called for hearing.
The Court has
read the moving and opposing papers in the above-captioned motion and announces
its tentative rulings in open Court.
The Motion for Reconsideration filed by Defendant General
Motors LLC on 04/28/2023 is DENIED.
Defendant General Motors LLC (“Defendant”) moves for an
order granting reconsideration of Plaintiff’s Motion to Compel the Deposition
of Defendant’s Person Most Knowledgeable (“PMK”) and ultimately denying the
motion. (Notice of Mtn., at p. 2.)
On April 18, 2023, the court granted Plaintiff Jeremy Ray
Harris’s (“Plaintiff”) unopposed motion to compel the deposition of Defendant’s
PMK. Defendant did not appear at the hearing. Defendant now requests the court
reconsider its order pursuant to Code of Civil Procedure section 1008, vacate
the order under Code of Civil Procedure section 473 subdivision b, and rule in
Defendant’s favor on the underlying motion to compel the PMK Deposition. Neither
party disputes the timeliness of the motion.
The court does not consider Defendant’s belated Reply
brief. (See Code Civ. Proc., §1005, subd. (b).)
The first issue is whether Defendant has identified grounds
for reconsideration.
“When an application for an order has been made to a judge,
or to a court, and refused in whole . . .
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.” (Code Civ. Proc., § 1008, subd., (a) (“Section
1008”).)
Defendant argues, the new or
different facts which justify granting the motion for reconsideration are the
context of the deposition subpoenas. Namely, Defendant argues that the PMK
deposition notices were defective on their face and issued after the discovery
cutoff. Defendant attaches counsel’s declaration affirming the argument that
the deposition notices were defective on their face. (Shugart Decl., ¶¶3-6.) Plaintiff
disputes this and argues it served the first deposition notice prior to the
discovery cutoff and the third deposition notice after the court granted his ex
parte motion to continue the trial dates, e.g., within the new discovery
cutoff. (Gergory Sogoyan Declaration [“Sogoyan Decl.”], ¶¶5-13.)
In either case, Defendant
implicitly argues it was aware of the alleged notice deficiencies at the time Plaintiff
served the deposition notice; indeed, it was the basis of Defendant’s decision
not to issue objections. (Mtn., at p. 2:10-12 [“Thus, the deposition notice was
deficient on its face as March 9 was beyond the discovery cutoff. This notice
required no objection”].) Accordingly, this is not a newly discovery fact. (See
Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255-56 [finding information previously
within the party’s possession was not “new evidence”].) “[F]acts of which the
party seeking reconsideration was aware at the time of the original ruling are
not ‘new or different.’ ” (In re Marriage of Herr (2009) 174 Cal. App. 4th
1463, 1468.) Defendant was aware of this fact at the time that Plaintiff
brought the motion to compel the PMK deposition and it, therefore, cannot be
grounds for a motion for reconsideration.
“In addition, a party must
provide a satisfactory explanation for failing to offer the evidence in the
first instance.” (Ibid.) Defendant offers counsel’s declaration in which he
states the failure to oppose the motion was due to a “clerical error at GM’s
counsel’s office. . .” This explanation, without more, is not satisfactory. “To
merit reconsideration, a party must give a satisfactory reason why it was
unable to present its ‘new’ evidence at the original hearing.” (McPherson v.
City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265, as modified on denial
of reh’g (Mar. 10, 2000.)
As Defendant has not
established grounds for reconsideration, the court does not address Defendant’s
arguments regarding the propriety of vacating a discovery order under Code of
Civil Procedure section 473 or the merits of underlying motion to compel the
deposition.
The motion is denied.
Moving party is directed to
give notice.