Judge: Lee S. Arian, Case: 21STCV14758, Date: 2023-11-29 Tentative Ruling

Case Number: 21STCV14758    Hearing Date: March 20, 2024    Dept: 27

¿ 

Hon. Lee S. Arian¿ 

Department 27¿ 

Tentative Ruling¿ 

Hearing Date:           3/20/2024 at 1:30 p.m.¿ 

Case No./Name:       21STCV14758 ANGLOR LASHAWN HENDLEY vs SEAN FRANCIS O' CONNER

Motion:                    MOTION FOR RECONSIDERATION

Moving Party:           Plaintiff’s Former Counsel Jorge Ledezma

Responding Party:    Defendant SEAN FRANCIS O'CONNER

Notice:                     Sufficient¿ 

Ruling:                     MOTION FOR RECONSIDERATION IS DENIED;  DEFENDANT’S REQUEST FOR SANCTIONS IS DENIED

Background

On January 25, 2024, the Court issued a ruling granting sanctions in the amount of $2,000 against Plaintiff and her former attorney of record jointly and severally. The sanctions were imposed because Plaintiff failed to appear at her scheduled independent medical examination (IME), compelling Defendant to file a motion to compel. That motion was brought only after Plaintiff’s counsel, as counsel of record for Plaintiff, was served with (1) second amended notices of independent medical examinations on October 14, 2022, and July 10, 2023; (2) third amended notices of independent medical examinations; on December 21, 2022, and September 13, 2023; and (3) defendant’s motion to compel independent medical examination filed on September 25, 2023. In ruling on the motion to compel, this Court found that the Plaintiff and her former attorney, the moving party, abused the discovery process due to their actions during their tenure as attorneys of record.

Plaintiff’s former attorney now moves the Court to reconsider the sanctions under California Code of Civil Procedure § 1008 due to the discovery of new facts and circumstances. Former counsel contends that he ceased representing Plaintiff and filed a motion to be relieved as counsel the day after Defendant filed its motion to compel, and he faced significant challenges in ensuring Plaintiff's attendance at the scheduled IME despite his best efforts. Defendant opposes the motion, arguing that no new facts have been presented.  Defendant also seeks sanctions for having to oppose this motion, asserting that such sanctions can be ordered for continuing discovery abuse. 

Legal Standard

CCP section 1008(a) states 

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 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. 

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.”  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.)  Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered. (Id.)   

Moreover, there is a strict requirement of diligence, which means the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)  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 trial.  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) 

Analysis

On January 25, 2024, Defendant served a notice of ruling containing the order at issue on Plaintiff’s former counsel. Ten days from that service is February 4, 2024; however, counsel filed the present motion on February 6, 2024. Thus, the motion is untimely.

Furthermore, the motion presents no new facts.  At the time of issuing its sanctions order, the Court was aware that the moving party was Plaintiff’s former attorney – the Court explicitly referred to Plaintiff’s former attorney numerous times in the order.

Arguably, the fact that Plaintiff's former counsel was diligent in attempting to ensure Plaintiff attended the IME is a new fact.   However, the motion to compel for which the Court ordered sanctions was filed while counsel's motion to be relieved was still pending approval, and counsel had sufficient opportunity to present this information to the Court.  Moving party failed to present a satisfactory explanation for failing to provide the facts earlier and for again failing to provide an explanation when the issue was raised in Defendant’s opposition to this Motion.

Accordingly, the present Motion for Reconsideration is DENIED.

In its discretion, the Court denies Defendant’s request for additional sanctions in relation to this Motion. 

 PLEASE TAKE NOTICE:          

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.            

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.            

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.