Judge: Michael Shultz, Case: 20STCV25875, Date: 2022-10-06 Tentative Ruling
INSTRUCTIONS: If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must:
1. Contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.
2. No later than 4:00 p.m. on the court day before the hearing, call the Courtroom (310-761-4302) advising that all parties will submit on the tentative ruling and waive hearing; and
3. Serve notice of the Court's ruling on all parties entitled to receive service.
If this procedure is followed, when the case is called the Court will enter its ruling on the motion in accordance with its tentative ruling. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing. If there is neither a telephone call nor an appearance, then the matter may either be taken off calendar or ruled on.
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Case Number: 20STCV25875 Hearing Date: October 6, 2022 Dept: A
20STCV25875
Jose Guillermo Tapia v. BaronHR, LLC, et al
[TENTATIVE] ORDER
I. BACKGROUND
The complaint alleges that Defendants, BaronHR, LLC;
BaronHR Group, LLC, and Titan Personnel, Inc. (collectively, “Defendants”) employed
Plaintiff in May 2017 as a packer at 2839 East El Presidio Street in Carson. On
July 14, 2017, while working, Plaintiff allegedly tripped over pallet jack that
was negligently parked. Plaintiff avers that Defendants did not carry workers’
compensation insurance in violation of the Labor Code. Plaintiff sues
Defendants for (1) direct employer negligence, (2) negligence, and (3)
negligent hiring, training, and/or retention.
On August 31, 2022, the court
granted Plaintiff’s motion for evidentiary and monetary sanctions for Defendants’
failure to comply with a prior court order compelling Defendants to provide supplemental,
verified discovery responses. Defendants now move for reconsideration of the
court’s order.
II.
ARGUMENTS
A.
Defendants’ motion
filed September 12, 2022
Defendants argue that the hearing on
the motion was set for August 18, 2022. On that date, Defendants requested a
continuance to which Plaintiff objected. The court took the motion under
submission and continued the hearing and Trial Setting Conference to August 31,
2022. Defense counsel failed to appear, and the court issued an order granting
Plaintiff’s motion for evidentiary and monetary sanctions.
Defendants contend that on August
18, 2022, the court revised the tentative ruling to include additional
discovery deadlines and to continue the hearing date. However, due to defense counsel’s
inadvertence, defense counsel did not comply with the proposed deadlines which
were never calendared, causing defense counsel’s failure to appear on August
31, 2022.
Defendants request a modification of
the court’s order to impose monetary sanctions only. Defendants have since
served supplemental responses. Defense counsel is willing to accept appropriate
additional monetary sanctions as warranted.
B.
Plaintiff’s
Opposition filed September 22, 2022
Plaintiff argues that Defendants
have not shown new or different facts, circumstances, or law that would warrant
reconsideration of the court’s ruling. Counsel’s inadvertence is not a new
fact. Defendants gave insufficient notice of motion by not adding five calendar
days for notice sent by mail. Plaintiff acknowledges that Defendants served
supplemental responses to the Requests for Admission but not to the Form
Interrogatories on which evidentiary sanctions were predicated. Defendants’
effort to correct any defects is superficial.
C.
The court’s file
does not reflect that Defendants filed a reply brief.
III. DISCUSSION
Defendants were required to serve the
motion by September 8, 2022, to allow for 16 court days of notice, increased by
five calendar days for service by mail. Code Civ. Proc., § 1005(b). Defendants
untimely served the motion by mail on September 12, 2022. However, under certain
circumstances, a party may be deemed to have waived any irregularity in the
notice by appearing at the hearing, opposing the motion, not asking for a
continuance, and not demonstrating any prejudice resulting from the shortened
notice.
The
general rule holds “that one who has been notified to attend a certain
proceeding and does do so, cannot be heard to complain of alleged insufficiency
of the notice; it has in such instance served its purpose. This rule applies to
one who appears in a lawsuit after defective service of process upon him
[citation], to one who responds to a notice of motion without adequate notice
[citation].” Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.
The court has considered the motion and Plaintiff’s opposition thereto.
Plaintiff has not shown any prejudice resulting from the defective notice.
Defendants have shown new circumstances to warrant
reconsideration for purposes of Civil Procedure section 1008. Code
of Civil Procedure section 1008 subd. (a) states that a motion
for reconsideration can be made within 10 days of service of the order at issue
if the moving party can show new or different facts, circumstances, or law that
warrant modification, amendment, or revocation of the prior order. Plaintiff
gave notice of the court’s August 31, 2022, order on the same day by mail and
email. Thus, the motion was required to be filed and served by September 8,
2022, to account for 10 days increased by two court days for service by electronic
means. Code Civ. Proc., § 1010.6(a)(3) as amended CA LEGIS 215 (2022), 2022 Cal. Legis. Serv. Ch. 215 (A.B. 2961)
(WEST). The motion was untimely filed on September 12, 2022.
However, the court also has discretion to reconsider an
order on its own motion, pursuant to its inherent authority. Section 1008
“limit[s] the parties' ability to file repetitive motions but do[es] not limit
the court's ability, on its own motion, to reconsider its prior interim orders
so it may correct its own errors." Le
Francois v. Goel (2005) 35 Cal.4th 1094, 1107.
Accordingly, the court considers the motion pursuant to its inherent authority.
Defendants also seek relief based on Code Civ. Proc., §
473(b), which gives
the court discretion to grant relief from an order or other proceeding taken against a
party through his or her mistake, inadvertence, surprise, or excusable neglect.
Code Civ. Proc., § 473 subd (b). If there is no prejudice, only slight evidence is
needed. Doubts are resolved in favor of party seeking relief. Mink v. Superior Court (1992) 2 Cal.App.4th 1338,
1343. Calendaring
errors may constitute excusable neglect under the appropriate circumstances. Comunidad en Accion v. Los Angeles City
Council (2013) 219 Cal.App.4th 1116, 1133.
Here, defense counsel avers that
he had multiple hearings on August 18, 2022, when the motion was originally
scheduled, therefore, he failed to calendar the continued hearing date.
Declaration of Eric M. Welch, ¶ 4-5. As a result, he failed to appear on August
31, 2022. Defendants also state they served supplemental responses to
discovery. Id., Ex. B. The declaration provides new circumstances to
support reconsideration and relief under both Code Civ. Proc., § 1008 and Code
Civ. Proc., § 473(b).
Defendants, however, have not shown
any facts justifying the court’s modification of the order by imposing monetary
sanctions. The Hon. Thomas D. Long first granted Plaintiff’s motion compelling
further responses to Form Interrogatories including Interrogatory 17.1. on
November 17, 2021. Defendants responded with only objections. Welch
declaration, Ex. A, page 3, ¶2. Judge Long then heard Plaintiff’s motion for
issue and evidentiary sanctions on February 3, 2022. Id., Ex. A, page 1.
The court ordered Defendants to submit supplemental responses and to brief the
issues in the context of motions in limine. Id. The court continued the
hearing to May 17, 2022, but did not issue a ruling based on the parties
stipulation as they were making efforts toward settlement. Id., page 2.
This court heard the motion on
August 18, 2022, issuing a tentative ruling to grant the motion, but declined
to adopt it, and continued the hearing to August 31, 2022, at which time
defense counsel did not appear.
Defendants have not shown any facts to warrant limiting
the order to monetary sanctions. While Defendants served supplemental responses
to Requests for Admission on September 12, 2022, none of the responses are
verified. Welch declaration, Ex. B. Unsworn responses are “tantamount to no responses at all
Appleton
v. Superior Court (1988) 206 Cal.App.3d 632, 636.
Additionally, Defendants did not respond to Form Interrogatory 17.1 which
requires facts to support each denial of a request for admission. Nor have
defendants accounted for responses to Form Interrogatories 12.1-12.4,
12-6-12.7, 13-1, 13-2, 15.1, and 16.1-16.9, or Employment Form Interrogatories
or Request for Production of Documents, all of which were at issue in
Plaintiff’s motion for sanctions. Welch declaration, Ex. A, page 3, ¶ 2; page
4, ¶ 5; page 6 ¶ 1. The court ordered further responses on November 19, 2021. Id.,
Ex. A, page 5, ¶2.
In short, the circumstances warranting imposition of
evidentiary sanctions have not changed given Defendants’ service of unverified supplemental
responses and failure to comply with the court’s original order in full. Accordingly, Defendants’ Motion for
Reconsideration is DENIED.