Judge Lynette Gridiron Winston, Case Number: 23PSCV01613, Date: 2023-10-05 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01613, Date: 2023-10-05 Tentative Ruling

Case Number: 23PSCV01613 Hearing Date: December 6, 2023 Dept: 6

CASE NAME: Kiarash Noorizadeh v. Dr. Maxwell Nazari 618 N. Diamond Bar Blvd, Diamond Bar, CA 91765

1. Motion for Reconsideration; and

2. Motion to Compel Responses to Defendant Maxwell Nazari, D.D.S.’ Request for Production of Documents, Set One, and Request for Monetary Sanctions

TENTATIVE RULING

The Court DENIES the motion for reconsideration.

The Court GRANTS the motion to compel responses to Defendant Maxwell Nazari, D.D.S.’ Request for Production of Documents, Set One. Plaintiff must provide verified, code-compliant responses without objections and responsive documents within 20 days of the Court’s order.

The Court further GRANTS Defendant’s request for monetary sanctions in the reduced amount of $435.00. Plaintiff must pay said monetary sanctions to counsel for Defendant within 20 days of the Court’s order.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a medical malpractice case. On May 26, 2023, Plaintiff Kiarash Noorizadeh (Plaintiff) filed this action against Dr. Maxwell Nazari 618 N. Diamond Bar Blvd, Diamond Bar, CA 91765 (Defendant), alleging causes of action for medical malpractice and personal injury.

On November 2, 2023, Defendant filed a motion to compel responses to Request for Production of Documents, Set Two. No opposition has been filed.

On November 21, 2023, Plaintiff filed a motion for reconsideration. On November 21, 2023, Defendant filed an opposition. No reply has been filed.

LEGAL STANDARD – Motion for Reconsideration

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.

(Code Civ. Proc., § 1008, subd. (a).)

“Under Code of Civil Procedure section 1008, a party seeking reconsideration of a prior ruling upon an alleged different set of facts must ‘provide both newly discovered evidence and an explanation for the failure to have produced such evidence earlier. [Citation.]’ [Citation.]” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168.) “The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)

DISCUSSION – Motion for Reconsideration

Plaintiff seeks for the Court to reconsider its October 5, 2023 ruling on Plaintiff’s motion to quash. Plaintiff contends that he was unable to attend the hearing on October 5, 2023 because he was hospitalized, which prevented him from presenting a full defense. (Motion, ¶ 2; Ex. A.) The Court finds this argument unavailing.

First, although not directly raised in Defendant’s opposition, Plaintiff’s motion is untimely. Defendant gave notice of the Court’s October 5, 2023 ruling on October 5, 2023. (Foxwell Decl., ¶ 18, Ex. I; see also Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 692 fn. * [“[e]rror under [Code of Civil Procedure] section 1008 is jurisdictional, depriving the court of power to proceed [citation]…”) This triggered the 10-day limit for a motion for reconsideration, which gave Plaintiff until October 17, 2023 to file it. (Code Civ. Proc., § 1008, subd. (a); Id., 1010.6, subd. (a)(3)(B) [two court-day extension for electronic service].) Plaintiff did not serve the motion for reconsideration until November 16, 2023, and did not file it with the Court until November 21, 2023. This by itself is sufficient grounds for denying Plaintiff’s motion.

Second, Plaintiff’s motion fails to present any new facts or law that would have had any effect on the Court’s October 5, 2023 ruling.

[W]e cannot accept respondent's implicit interpretation of section 1008 that a ‘new’ or ‘different’ fact or circumstance wholly collateral to the merits of the initial motion is sufficient to warrant reconsideration. While not denigrating the assistance that oral argument can provide to a court, the fact that respondent intended to request that the court entertain oral argument with respect to the initial motions is clearly collateral to the merits of the motions. Again, respondent did not present any facts or authorities relating to the merits of the underlying motion that were not considered by the trial court when it issued its initial orders.

(See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Plaintiff’s hospitalization has nothing to do with Defendant’s efforts to subpoena the third party Los Olivos Dentistry, which was the subject of Plaintiff’s motion to quash. (Order Tentative Ruling (10/5/23).) The fact that the hospitalization may have prevented Plaintiff from appearing at the October 5, 2023 hearing and making an oral argument is “collateral to the merits” of the motion to quash, and does not make it a new fact for purposes of a motion for reconsideration. (See Gilberd, supra, 32 Cal.App.4th at p. 1500.)

Based on the foregoing, the Court DENIES Plaintiff’s motion for reconsideration.

LEGAL STANDARD – Motion to Compel

When a party to whom an inspection demand is directed fails to respond under Code of Civil Procedure section 2031.300(b), a party making the demand may move for an order compelling a response to the inspection demand. A party who fails to provide timely responses waives any objection, including one based on privilege or work product. (Code Civ. Proc., § 2031.300, subd. (a).) “[T]he court shall impose a monetary sanction… against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Id., § 2031.310, subd. (h).)

DISCUSSION – Motion to Compel

Defendant seeks an order compelling Plaintiff to provide verified responses, without objections, to Defendant’s Request for Production of Documents, Set One. Defendant contends that the discovery requests were served on Plaintiff on July 10, 2023, but that no responses have been provided, despite Defendant’s meet and confer efforts. (Foxwell Decl., ¶¶ 5-15.) The Court finds Defendant’s motion to be well-taken and GRANTS Defendant’s motion.

The Court further GRANTS Defendant’s request for monetary sanctions in the reduced amount of $435.00, comprised of 1.0 hour preparing the motion and 0.5 hours for appearing at the hearing on the motion, for a total of 1.5 hours, multiplied by the hourly rate of $250.00, plus $60.00 for the filing fee.

CONCLUSION

The Court DENIES the motion for reconsideration.

Defendant is ordered to give notice of the Court’s ruling within five calendar days of this order.