Judge: Michael E. Whitaker, Case: BC701398, Date: 2022-12-12 Tentative Ruling

Case Number: BC701398    Hearing Date: December 12, 2022    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

MOTIONS

              Plaintiff Roxana Portillo-Choto (Plaintiff) moves for reconsideration of the Court’s order of September 19, 2022, in which the Court granted Defendant Lainie Kazan’s (Defendant) Motion to Exclude Expert Witness.  Defendant opposes 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 and 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 September 19, 2022 Minute Order.  Plaintiff advances the declaration of her counsel, Lindsay Burton (Counsel), in support of the motion.  Counsel’s declaration does not present new or different facts, circumstances, or law, but rather proffers an excuse as to why Plaintiff did not submit an opposition presenting available facts to Defendant’s Motion to Exclude.  Counsel states that Plaintiff did not file an opposition to Defendant’s original motion because Defendant’s counsel had made representations that they were going to take the Motion to Exclude off-calendar.  (Declaration of Lindsay Burton, ¶ 15-20, Exhibit 9.)  In opposition, Defendant states that Counsel and Defendant’s former defense counsel signed a stipulation that expressly stated if the September 13, 2022 deposition of Dr. Fox was conducted, then the motion to exclude Dr. Fox would be withdrawn.  (Declaration of Edye A. Hill, Exhibit A at 2:20-24.)  Dr. Fox was not produced for deposition on September 13, 2022, thus the Motion to Exclude was not taken off calendar. 

As such, the Court finds Plaintiff has failed to provide satisfactory basis for the Court to reconsider its prior ruling. Accordingly, the Court denies Plaintiff’s motion for consideration under Code of Civil Procedure section 1008. 

The Clerk of the Court shall provide notice of the Court’s ruling.