Judge: Mark E. Windham, Case: 22STLC00767, Date: 2022-10-06 Tentative Ruling
Case Number: 22STLC00767 Hearing Date: October 6, 2022 Dept: 26
MOTION FOR
RECONSIDERATION
(CCP § 1008(a))
SERVICE:
[X] Proof of Service Timely
Filed (CRC 317(b)) OK
[X] Correct Address (CCP
1013, 1013a) OK
[X] 16/21 Day Lapse (CCP 12c
and 1005(b)) OK
SUMMARY OF COMPLAINT: Action for violation of Consumer Legal Remedies Act, misrepresentation
and unfair competition. Cross-action for promissory fraud and quantum
meruit.
REQUEST FOR RELIEF: Reconsider the Court’s September
1, 2022 order granting Plaintiff’s motion to compel Defendant Sabet’s
deposition. The parties are not able to see the online docket in this action
and, as a result, do not know which judge is hearing their motions. The order
compelling Defendant Sabet’s deposition should be reconsidered and denied
because there is no active Complaint in this action, as evidenced by the
Court’s own orders regarding reclassification. Defense counsel was not able to
bring these facts to the new judge’s attention because a medical emergency
prevented him from attending the hearing on September 1, 2022.
OPPOSITION: Defense
counsel’s declaration in support of the Motion for Reconsideration is full of
falsehoods.
REPLY: New
facts were brought to light during the hearing on September 8, 2022.
Specifically, that Plaintiff failed to file a proper Amended Complaint.
TENTATIVE RULING:
Defendant Jospeh Sabet’s Motion for
Reconsideration is DENIED. THE RULING FROM SEPTEMBER 1, 2022 IS RE-ISSUED, AS
FOLLOWS:
PLAINTIFF GERALD V. SELVO’S MOTION
TO COMPEL APPEARANCE AND TESTIMONY AT DEPOSITION AND REQUEST FOR SANCTIONS IS GRANTED.
DEFENDANT JOSEPH SABET IS ORDRED TO APPEAR FOR DEPOSITION AT A DATE AND TIME
DETERMINED BY PLAINTIFF, WITHIN 20 DAYS OF THIS ORDER. DEFENDANT JOSEPH SABET
AND COUNSEL OF RECORD ARE JOINTLY ORDERED TO PAY SANCTIONS OF $100.00 TO
PLAINTIFF WITHIN 20 DAYS’ SERVICE OF THIS ORDER.
ANALYSIS:
On February 4, 2022,
Plaintiff Gerald V. Selvo (“Plaintiff”) filed the instant action for violation of Consumer Legal Remedies Act,
misrepresentation and unfair competition against Defendants Joseph Sabet
and Sabet Dental Corporation
(“Defendants”). On April 26, 2022, Defendants filed a Special Motion to Strike
the Complaint and Motion to Reclassify Action. Defendant Sabet then filed a
Cross-Complaint on May 2, 2022.
On May 18, 2022, the
Court took the Special Motion to Strike and Motion to Reclassify under
submission. (Minute Order, 05/18/22.) On May 19, 2022, the clerk filed a notice
of reclassification, reassigning the action from the limited jurisdiction court
to the unlimited jurisdiction court. (Notice of Reclassification, 05/19/22.)
Also, on May 19, 2022, the Court issued its ruling by placing the Special
Motion to Strike off calendar, continuing the Motion to Reclassify, and
striking the Cross-Complaint on its own motion. (Minute Order, 05/19/22.)
In light of the
order striking the Cross-Complaint, the case was reassigned back to the limited
jurisdiction court on June 2, 2022. Plaintiff filed an Amendment to the
Complaint on June 7, 2022. Defendant Sabet sought to file a Second Amended
Cross-Complaint on June 7, 2022 and again on August 3, 2022. Those Second
Amended Cross-Complaints were received by the clerk but not filed.
On August 31, 2022,
the Court granted Plaintiff’s Motion to Compel Defendant Sabet’s Further
Responses to Request for Production of Documents, Set One, but denied the
Request for Sanctions. (Minute Order, 08/31/22, p. 5.) The Court also deemed
the First Amended Complaint filed as of June 7, 2022. (Ibid.) On
September 1, 2022, the Court granted Plaintiff’s Motion to Compel Defendant
Sabet’s Appearance and Testimony at Deposition, and Request for Sanctions.
(Minute Order, 09/01/22.)
On September 8,
2022, Defendant Sabet’s Motion for Leave to File Cross-Complaint and Motion to
Reclassify Action to Unlimited Jurisdiction Court came for hearing. The Court
continued the hearing on the Motion to Reclassify to November 10, 2022. (Minute
Order, 09/08/22.)
On September 12,
2022, Defendant Sabet filed the instant Motion for Reconsideration of the
September 1, 2022 order. Plaintiff filed an opposition on September 21, 2022
and Defendant Sabet replied on September 28, 2022.
Discussion
The Motion for Reconsideration is
brought pursuant to Code of Civil Procedure section 1008, subdivision (a),
which 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.”
(Code Civ. Proc., § 1008, subd. (a).) Notice of the September
1, 2022 order was to be provided by Plaintiff but no proof of service of such
notice has been filed. Therefore, the deadline for the Motion for
Reconsideration has not expired and it was timely filed and served on September
12, 2022.
New or Different Facts or Law
Defendant Sabet contends that “new of different facts” exist
with respect to Plaintiff’s Motion to Compel Deposition because the rulings on
Plaintiff’s Motion to Compel Further Responses on August 31, 2022 and
Plaintiff’s Motion to Compel Deposition on September 1, 2022, were
contradictory, despite the similar issues presented. (Motion, Vafa Decl., ¶¶2-5.)
Defendant Sabet argues that these rulings were contradictory because they were
made by different judicial officers, and the judge who made the ruling on
September 1, 2022 was unaware of the prior rulings in this case. (Ibid.)
The Motion’s recitation of the rulings on August 31, 2022
and September 1, 2022, however, is incorrect. Contrary to the declaration of
defense counsel, the Court did not deny Plaintiff’s Motion to Compel Further
Responses on August 31, 2022. (See Motion, Vafa Decl., ¶5.) The Motion to
Compel Further Responses was granted. (Minute Order, 08/31/22.) Likewise, the
Motion to Compel Appearance and Testimony at Deposition was granted. (Minute
Order, 09/01/22.) Nor is there any support in the record for defense counsel’s
contention that on August 31, 2022 the Court “found that Plaintiff’s claims and
the forgoing action may be baseless since Plaintiff has not yet filed an
Amended Complaint with supported claims against Sabet.” (See Motion, Vafa
Decl., ¶4.) Whatever arguments were made by the parties and discussions were
had with the judicial officer, the final ruling on the Motion to Compel Further
Responses makes no such finding and Defendant Sabet cites no transcript. (Ibid.)
It is true the tentative ruling for the hearing on September
8, 2022 set an Order to Show Cause re Failure to File Amended Complaint, but following
oral argument of counsel, the Court determined there should be no such Order to
Show Cause. (Minute Order, 09/08/22, p. 1.) Instead, the Court ruled that the
Amendment to the Complaint should be deemed the First Amended Complaint and
deemed it filed on June 7, 2022. (Id. at p. 2.) This ruling is not contradicted
by any other finding of the Court. Indeed, the inaccuracies and lack of
citation to relevant evidence undermines the credibility of defense counsel’s declaration.
The Motion goes on to rely on the inadequate evidence
discussed above to argue that “there is no Active Complaint or Presumably any
Cross-Complaint with Factual Causes of Action Against Defendants.” (Id.
at ¶7.) First, as discussed above, this is incorrect based on the Court’s
ruling from August 31, 2022. Second, even if the Court were to make finding now
that the June 7, 2022 Amendment was improper (which would actually contradict
the August 31, 2022 order), the original Complaint remains the operative
pleading in this action. Defendant Sabet cites no authority that the original
Complaint, by virtue of seeking declaratory relief, somehow becomes “inactive” in
this Court, such that the ruling on Plaintiff’s Motion to Compel Deposition
should be changed. (Motion, p. 8:4-6.)
Conclusion
Based on the foregoing,
Defendant Joseph Sabet’s Motion for Reconsideration is DENIED. THE RULING FROM
SEPTEMBER 1, 2022 IS RE-ISSUED, AS FOLLOWS:
PLAINTIFF GERALD V. SELVO’S MOTION
TO COMPEL APPEARANCE AND TESTIMONY AT DEPOSITION AND REQUEST FOR SANCTIONS IS GRANTED.
DEFENDANT JOSEPH SABET IS ORDRED TO APPEAR FOR DEPOSITION AT A DATE AND TIME
DETERMINED BY PLAINTIFF, WITHIN 20 DAYS OF THIS ORDER. DEFENDANT JOSEPH SABET
AND COUNSEL OF RECORD ARE JOINTLY ORDERED TO PAY SANCTIONS OF $100.00 TO
PLAINTIFF WITHIN 20 DAYS’ SERVICE OF THIS ORDER.