Judge: Michael E. Whitaker, Case: 22SMCV01666, Date: 2023-09-20 Tentative Ruling

Case Number: 22SMCV01666    Hearing Date: December 12, 2023    Dept: 207

TENTATIVE RULING

MOTION

              Plaintiff Blue Lake Capital, LLC (“Plaintiff”) seeks reconsideration of the Court’s order of November 2, 2023 in which the Court granted Plaintiff’s motion for terminating sanctions by striking Defendant Amanda Moore’s answer filed on  February 24, 2023 and dismissing Defendant’s cross-complaint filed on March 21, 2023 without prejudice.  Specifically, Plaintiff requests the Court reconsider the dismissal without prejudice and dismiss Defendant’s cross-complaint with prejudice.  The motion is unopposed.

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, 213 [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, the Court electronically issued its Minute Order on November 2, 2023.  Code of Civil Procedure, section 1010.6, subdivision (a)(3)(B) provides, in relevant part:   “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days[….]”  Plaintiff timely filed the motion on November 14, which is within 12 days of entry of the Court’s November 2, 2023 Order. 

Plaintiff contends, that pursuant to Franklin Capital Corp. v. Wilson (2007) 148 Cal. App. 4th 187, 207 (hereafter Franklin) and Kahn v. Kahn (1977) 68 Cal. App. 3d 372, 387 (hereafter Kahn), dismissal pursuant to a “terminating sanction for discovery disobedience is with prejudice.”  (Mot. at p. 6.)  Plaintiff also cites to Bernstein v. Allstate Insurance Co. (1981) 119 Cal. App. 3d 449, 451 (hereafter Bernstein), Osborne v. Todd Farm Service (2016) 247 Cal. App. 4th 43, 50, 54-55 (hereafter Osborne), and Hartbrodt v. Burke (1996) 42 Cal.App.4th 168 (hereafter Hartbrodt) in support of its argument.

Kahn, analyzing Code of Civil Procedure section 2034, the predecessor to section 2023.030, held, as a matter of first impression, that dismissal as a discovery sanction is a determination on the merits for purposes of res judicata because “a persistent refusal to comply with an order for the production of evidence is tantamount to an admission that the disobedient party really has no meritorious claim or defense to the action.”  (Kahn, supra, 68 Cal.App.3d at p. 382.)

Franklin, while holding that dismissal as a sanction for failure to attend a mandatory settlement conference was without prejudice, also reiterated that Kahn “established that dismissals pursuant to a terminating sanction for violation of discovery orders are indeed res judicata.”  (Franklin, supra, 148 Cal.App.4th at p. 216.)

Bernstein similarly reiterated that Kahn established “[a] dismissal for failure to obey a court’s discovery orders has the effect of a judgment on the merits.”  (Bernstein, supra, 119 Cal.App.3d at p. 451.)

In Osborne, the appellate court upheld the trial court’s dismissal with prejudice as a sanction for “flagrant and repeated violations of the Court’s order[….]”  (Osborne, supra, 247 Cal.App.4th at p. 50.)

Finally, in Hartbrodt, the appellate court affirmed the trial court’s dismissal of the case as a discovery sanction and the trial court’s refusal to permit plaintiff to voluntarily dismiss his case without prejudice in an attempt to defeat the discovery sanction.  (Hartbrodt, supra, 42 Cal.App.4th at p. 175.)

Thus, the Court is persuaded that a Court’s dismissal as a discovery sanction is with prejudice as a matter of law.

CONCLUSION AND ORDER

            Therefore, the Court grants Plaintiff’s motion for reconsideration and orders the dismissal of Defendant’s cross-complaint with prejudice, vacating the Court’s prior order of dismissing the cross-complaint without prejudice. 

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

DATED:  December 12, 2023                                                ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court