Judge: Michael E. Whitaker, Case: 21STCV09436, Date: 2023-05-17 Tentative Ruling

Case Number: 21STCV09436    Hearing Date: May 17, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

              Plaintiff Ellen Isakhanyan (Plaintiff) moves for reconsideration of the Court’s order of March 8, 2023, in which the Court granted in part Defendants Shawn Allen Hauer and Progressive Equipment Leasing, Inc.’s (collectively, Defendants) motion to compel Plaintiff’s deposition and production of documents, as well as Defendants’ request for sanctions.  Defendants oppose the motion.

ANALYSIS

Under Code of Civil Procedure section 1008, subdivision (a), “[w]hen 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 an 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).)  Where the statutory requirements are met, reconsideration should be granted; upon reconsideration, however, the court may simply reaffirm its original order.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) 

The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time[.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations &citations omitted; see New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 21 [on a motion for reconsideration, a party must present new or different facts, circumstances, or law, which the moving party “could not, with reasonable diligence, have discovered or produced” in connection with the original hearing].)

Here, Plaintiff timely filed the motion within 10 days after entry of the Court’s March 8, 2023 Order.  Plaintiff advances the declaration of her counsel, Jack Sogoyan (Counsel), in support of the motion. 

Counsel states that on November 21, 2022 Defendants served and filed a notice of motion requesting the Court compel Plaintiff’s attendance at her deposition, compel production of Plaintiff’s cellphone for forensic metadata extraction, and award monetary sanctions against Plaintiff.  (Declaration of Jack Sogoyan, ¶ 5, Exhibit C.)  Based on the Court’s continuance of the hearing for Defendants’ motion to February 28, 2023, Plaintiff’s opposition to Defendants’ motion was to be filed and served on or before February 10, 2023.  (Declaration of Jack Sogoyan, ¶ 7, Exhibit D.)  On February 9, 2023, Plaintiff filed with the Court, and served her opposition to Defendants’ motion on Defendants’ counsel.  (Declaration of Jack Sogoyan ¶ 9, Exhibit E.)  On February 22, 2023, six calendar days before Plaintiff’s deposition, Plaintiff served Defendants’ counsel with timely valid written objections to Defendants’ notice of deposition, pursuant to Code of Civil Procedure section 2025.410.  (Declaration of Jack Sogoyan, ¶ 11, Exhibit G.)  Plaintiff explains that she specifically objected to Defendants’ requests for Plaintiff to produce her cellphone at the time of her deposition and allow Defendants’ forensic specialist to extract metadata. 

Here, Plaintiff did not include the subject objections with her opposition to Defendants’ motion  because the opposition deadline was February 10, 2023, approximately two weeks before the written objections deadline.  Thus, the Court finds that the subject objections constitute new or different facts, or circumstances, which were not present when Plaintiff filed her opposition to Defendants’ motion. 

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion for reconsideration on the limited issue of Defendants’ request to compel the production of Plaintiff’s cellphone to extract metadata, including the award of monetary sanctions, as set forth in the March 8, 2023 order. 

            Further, the Court will reconsider Defendants’ motion to compel on the limited issue on June 28, 2023 at 1:30 PM in Department 32 with the following briefing schedule, addressing Plaintiff’s subject objections:

1.      Defendants’ supplemental memorandum of points and authorities in support of the motion to compel (limited to 7 pages excluding attachments) shall be filed and served on or before May 31, 2023.

2.      Plaintiff’s supplemental memorandum of points and authorities in opposition to the motion to compel (limited to 7 pages excluding attachments) shall be filed and served on or before June 14, 2023.

3.      Defendants’ supplemental memorandum of points and authorities in reply to Plaintiff’s  opposition to the motion to compel (limited to 5 pages excluding attachments) shall be filed and served on or before June 21, 2023.

            Plaintiff shall provide notice of the Court’s orders and file a proof of service of such.