Judge Mark A. Young, Case 19SMCV01651 2022-10-11 Tentative Ruling

Judge: Mark A. Young, Case: 19SMCV01651, Date: 2022-10-11 Tentative Ruling

Case Number: 19SMCV01651 Hearing Date: October 11, 2022 Dept: M

CASE NO.: 19SMCV01651

MOTION: Motion for Reconsideration

HEARING DATE: 10/11/2022

BACKGROUND

By way of background, the Court ordered LeDuff to produce various discovery on November 8, 2021, and February 2, 2022. On November 8, 2021, this Court heard various discovery motions filed by Oubre. The Court granted Oubre’s motions to compel responses to Oubre’s form interrogatories, special interrogatories, and requests for production of documents. In particular, the Court ordered LeDuff to provide responses to Oubre’s request for production of documents, numbers 1-6 and 23-53. (November 8, 2021 Minute Order, p. 5.) Written responses were due within 10 days, and documents were due within 20 days. (Ibid.) LeDuff was ordered to respond without objection. (Ibid.)

On February 2, 2022, this Court considered Oubre’s motion seeking issue, evidence, and/or monetary sanctions based on LeDuff’s failure to provide responses to Oubre’s request for production of documents. The Court granted Oubre’s request for an issue sanction concluding that “LeDuff trespassed at the Arby Drive house Oubre rented in 2019 when she returned in July of 2019 and refused to leave.” (February 2, 2022 Minute Order, pp. 6-7.) The Court granted Oubre’s request for evidentiary sanctions and ordered that LeDuff be “precluded from introducing at trial any documents or communications responsive to this request for production of documents other than those she has already produced (M000001-669), have been produced by third parties to date, or have been produced by Oubre to date, unless [LeDuff] can demonstrate to the Court that those documents were not discoverable earlier or otherwise justifies the lack of production.” (Id. at 7.) The Court further found that LeDuff willfully withheld documents in bad faith and ordered LeDuff to produce documents by close of business on Monday, February 14, 2022. (Ibid.)

On March 29, 2022, LeDuff moved the Court on an ex parte basis for an order (1) permitting LeDuff 30 days to obtain new counsel due to the ethical conflicts created by this Court’s discovery orders and the Court of Appeal’s denial of the Writ Petition and (2) clarifying the scope of this Court’s February 2, 2022, Order. The Court denied LeDuff’s ex parte application on March 30, 2022. On April 14, 2022, the Court issued additional sanctions against LeDuff. In sum, the Court ordered that:

1) LeDuff was to provide to Plaintiff Oubre her verified responses to the outstanding RPDs within 21 days from the date of the ruling, without objections;

2) LeDuff was to pay monetary sanctions in the sum of $13,410.00 to Plaintiff;

3) Issue sanctions designating that LeDuff slashed the tires belonging to Oubre’s vehicle; and

4) Evidence sanctions, as follows: (a) LeDuff is precluded from calling her family members to testify at trial; (b) LeDuff is precluded from calling her friends, attorneys, and relevant third parties to testify at trial to the extent that she had communications with those individuals regarding Oubre yet failed to turn over those documents; (c) LeDuff is precluded from testifying at trial as to any purported events other than those discussed in the limited documents and communications she has produced to date (M000001-1224); and (f) LeDuff’s counsel is precluded from making arguments inconsistent with the above evidentiary sanctions at trial.

On April 25, 2022, LeDuff filed the instant motion for reconsideration of that ruling. Plaintiff opposes.

Legal Standard

A non-prevailing party may make a motion to reconsider and enter a different order under the following conditions: (1) brought before the same judge that made the order sought to be reconsidered; (2) made within 10 days after service upon the party of the notice of entry of the order (extended under CCP § 1013 for type of service); (3) based on new or different facts, circumstances or law than those before the court at the time of the original ruling; (4) supported by a declaration stating the previous order, by which judge it was made, and the new or different facts, circumstances or law claimed to exist; and (5) the motion must be made and decided before entry of judgment. (CCP, § 1008.)

The legislature intended 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 [misinterpretation of the law is not a new or different matter].) Thus, “[t]o be entitled to reconsideration, a party should show that (1) evidence of new or different facts exist, and (2) the party has a satisfactory explanation for failing to produce such evidence at an earlier time.” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The moving party must demonstrate that such newly discovered evidence could not, with reasonable diligence, have previously discovered and produced. (Wilcox v. Ford (1988) 206 Cal.App.3d 1170.)

The court may also reconsider its prior interim orders on its own motion to correct its own errors. (Le Francoise v. Goel (2005) 35 Cal.4th 1094, 1107-09.)

Analysis

Spooner-LeDuff argues that new facts warrant reconsideration of the prior sanction determinations, specifically that the Court may now consider that prior counsel improperly delayed in preparing discovery and failed to take sufficient effort in producing responsive documents. (Spooner-LeDuff Dec. ¶¶ 9-18.) Strictly speaking, the Court finds no new or different facts exist that could not have been produced at the prior hearing. As noted on the record at the hearing, Plaintiff did have the opportunity to present evidence through her current counsel of record as to her prior counsel’s fault. The Court explicitly considered this factor prior to issuing a ruling. The Court found that both counsel and Plaintiff were at fault for discovery abuse. Even considering the new evidence, the Court still holds the position that the evidentiary and issue sanctions are warranted as ordered.

Spooner-LeDuff requests clarification on the sanctions. However, the Court finds that the sanctions are sufficiently stated on the record, reproduced in essence above. Any rulings on the admissibility of certain items of evidence may be obtained through typical motions in limine. Finally, Spooner-LeDuff asks the Court to clarify that her communications with The Maloney Firm remain privileged. The Court already considers this issue resolved as set forth by the Court at the prior hearing. (4/13/22 Hearing Tr. at pp. 14-15.)

Accordingly, the motion is DENIED.

Motion to Seal

To seal, the Court must find that (1) an overriding interest exists that overcomes the right of public access to the record; (2) the overriding interest supports sealing the records; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest. (CRC, Rule 2.550(d).) Here, the sealing should be limited to redactions of the private information (P’s phone number and information from the therapist records). Looking at the application, it does ask to seal the entire motion. But looking to the substance of the publicly filed document, only certain redactions were made. Thus, despite the notice, LeDuff does not move to seal the entire motion from the record, but only seemingly well-tailored redactions. No less restrictive means are apparent to protect the overriding privacy interest. Thus, the request to seal the portions of the motion is granted.