SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background  

On January 19, 2021, Plaintiff Sergio Esparza Montoya (“Plaintiff”) filed this action against Defendants Delano Investors, LLC (“Delano”) and Pacific Real Estate and Management, Inc. (“Pacific Real Estate”) (collectively, “Defendants”) for damages relating to Plaintiff’s slip and fall allegedly caused by an “improperly repaired ceiling” that filled the floor of the subject property with water.¿ 

On March 10, 2023, the Court granted Defendant Delano’s motions to compel responses to form interrogatories, set one, and special interrogatories, set one, against Plaintiff; the motion to deem request for admissions (“RFAs”) admitted was moot due to responses served. (Min. Order, March 10, 2023.) Plaintiff was ordered to serve verified responses to the discovery, without objections, within 10 days and monetary sanctions were imposed against Plaintiff and Plaintiff’s counsel.  (Ibid.) Plaintiff did not serve verified responses to the discovery and on April 3, 2023, Defendant Delano filed a motion for terminating sanctions against Plaintiff.  

On June 28, 2023, the Court granted Defendant Delano’s motion for terminating sanctions, and Plaintiff’s action against Defendants Delano and Pacific Real Estate was dismissed. (Min. Order, June 28, 2023.) 

The court should consider the totality of the circumstances, including conduct of the party to determine if the actions were willful, the determent to the propounding party, and the number of formal and informal attempts to obtain discovery.  (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1246.)  If a lesser sanction fails to curb abuse, a greater sanction is warranted.  (Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)  However, “the unsuccessful imposition of a lesser sanction is not an absolute prerequisite to the utilization of the ultimate sanction.”  (Deyo v. Killbourne (1978) 84 Cal.App.3d 771, 787.)  Terminating sanctions should not be ordered lightly, but are justified where a violation is willful, preceded by a history of abuse, and there is evidence that less severe sanctions would not produce compliance with the discovery rules.  (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) 

Before any sanctions may be imposed the court must make an express finding that there has been a willful failure of the party to serve the required answers.  (Fairfield v. Superior Court for Los Angeles County (1966) 246 Cal.App.2d 113, 118.)  Lack of diligence may be deemed willful where the party understood its obligation, had the ability to comply, and failed to comply.  (Deyo, supra, 84 Cal.App.3d at p. 787; Fred Howland Co. v. Superior Court of Los Angeles County (1966) 244 Cal.App.2d 605, 610-611.)  The party who failed to comply with discovery obligations has the burden of showing that the failure was not willful.  (Deyo, supra, 84 Cal.App.3d at p. 788; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250; Evid. Code, §§ 500, 605.) 

 

III. Motion for Reconsideration 

A. Timeliness of Motion 

CCP § 1008(a) 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. 

CCP § 1008(a), thus, requires a motion for reconsideration to be filed within ten days after the subject ruling. In this case, Defendants filed and served the notice of the terminating sanction ruling on Plaintiff on July 6, 2023. Plaintiff’s motion, brought on July 17, 20231, was therefore timely filed and will be considered on its merits. 

 

B. Discussion 

CCP § 1008(a), thus, requires the Court to reconsider a prior ruling if it finds there are new or different facts, circumstances, or law than those before the Court at the time of the original ruling.  Once the Court determines the existence of new or different facts, circumstances, of law, it can either modify or affirm its prior decision.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) 

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 150.)  “[A] court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’”  (Id.)  The burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”  (New York Times Co. v. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213.)  There is a strict requirement of diligence, so the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)  A motion for reconsideration was properly denied where based on evidence that could have been presented in connection with the original motion.  (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.) Late compliance with an order is not a new fact supporting reconsideration, where an action is dismissed for failure to comply with an order.  (Forrest v. Dept. Of Corps.  (2007) 150 Cal.App.4th 183, 203-04, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172.) 

Here, Plaintiff’s counsel argues he was not heard at the hearing for terminating sanctions on June 28, 2023. Plaintiff’s counsel declares he checked-in for a remote at 1:15 p.m., and that technical difficulties made it such that the Court was unable to hear Plaintiff’s counsel. Afterwards, Plaintiff’s counsel avers he contacted the clerk regarding the technical issue. Furthermore, Plaintiff filing the Hanassab Declaration on the day of the hearing at 11:30 a.m. would not have provided the Court sufficient time to be on notice of the declaration’s existence nor sufficient time to review the late-filed document.  However, in light of the harshness of terminating sanctions, had the parties all been present at the hearing, the Court would have exercised its discretion and still considered the Hanassab Declaration, and continued the motion if necessary. The Court does not have a clear recollection of the hearing. Nevertheless, the Court considers the late declaration to be new evidence.  

Defendants argue that Plaintiff has not demonstrated diligence in presenting Plaintiff’s arguments earlier. While the Court agrees that Plaintiff delayed in terms of timely serving Defendants with responses, and fails to provide reasons as to the delay, Plaintiff nevertheless served verified responses prior to the motion being heard. Defendants do not argue that responses were not served, only that it was late and served on the day of the hearing. In terms of diligence, because Plaintiff did not serve responses until the day of the hearing, Plaintiff could not have brought the argument that Plaintiff did in fact serve responses any earlier. There is no longer evidence that less severe sanctions would not produce compliance with the discovery rules when Plaintiff has served responses to the outstanding discovery, which the terminating sanctions was premised upon. 

Accordingly, Plaintiff does provide new or different facts and circumstances concerning the June 28, 2023 order granting Defendants’ motion for terminating sanctions. Furthermore, the Court notes the error in its June 28, 2023 Order imposing terminating sanctions. The March 10, 2023 Order compelling responses pertained only to responses owed to Defendant Delano. Accordingly, there was no basis for the dismissal of Plaintiff’s action against Pacific Real Estate. 

 

Based on the foregoing, Plaintiff’s motion for reconsideration is GRANTED. The Court now (1) denies the motion for terminating sanctions; (2) imposes monetary sanctions in the amount of $985 against Plaintiff and Plaintiff’s counsel, jointly and severally, and they are ordered to pay sanctions to Defendants, by and through counsel of record; and (3) sets aside the dismissal of Plaintiff’s action against Defendants.  

 

Plaintiff is ordered to give notice.   

 

FOOTNOTES: 

[1] Ten days from July 6, 2023 is July 16, 2023, which falls on a Sunday. If the day falls on a Saturday, Sunday, or other legal holiday, the period is extended to and includes the next day that is not a holiday. (California Rules of Court, Rule 1.10(b).) Therefore, the motion filed on the following day of July 17, 2023 is timely.