Judge: Michelle C. Kim, Case: 22STCV14182, Date: 2023-04-18 Tentative Ruling

Case Number: 22STCV14182    Hearing Date: April 18, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Camille Perry (“Plaintiff”) filed this action against Defendant AMC Entertainment Holdings, Inc. (“Defendant”) for injuries Plaintiff sustained after allegedly slipping and falling down on wet steps in Defendant’s movie theater. 

On January 23, 2023, Defendant’s motions to compel responses to form interrogatories, set one, and special interrogatories, set one, against Plaintiff were granted.[1]  Plaintiff was ordered to serve verified responses to the discovery, without objections, within 30 days and monetary sanctions were imposed against Plaintiff’s counsel.  (Min. Order, Jan. 23, 2023.)  Defendant filed notice of the ruling showing electronic service on Plaintiff on January 25, 2023. 

On March 1, 2023, Plaintiff filed the instant motion for reconsideration of the January 23, 2023 order.  Defendant opposes the motion, and Plaintiff filed a reply.

2. Motion for Reconsideration

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 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.)

Here, Plaintiff asserts that on June 23, 2022, Defendant served its requests for production of documents (“RPDs”), set one, on Plaintiff on an incorrect email address and failed to include litigation staff responsible for calendaring matters.  Plaintiff contends because of Defendant’s improper service, Plaintiff did not serve responses.  Plaintiff asserts that Defendant similarly served the wrong email address with the motion to compel responses to RPDs and with the notice of ruling.  Plaintiff argues that it informed Defendant of the improper service, but Defendant ignored the proper service addresses required for electronic service.  Plaintiff asserts that the Court should thus reconsider its January 23, 2023 order. 

            However, the issue with Plaintiff’s instant motion is that while Plaintiff contends that Defendant did not properly serve RPDs on Plaintiff, as stated above, the January 23, 2023 order pertained to Defendant’s motions to compel responses to form interrogatories and special interrogatories, not RPDs.  Plaintiff does not address the form or special interrogatories that were at issue at the January 23, 2023 hearing, nor does Plaintiff contend at this time that service of such was improper.  The Court notes that on January 24, 2023, an order was issued compelling responses to Defendant’s RPDs served on Plaintiff.  However, nowhere in the notice of motion or moving papers is the January 24, 2023 order referenced by Plaintiff.   Accordingly, Plaintiff does not provide any new or different facts, circumstances, or law concerning the January 23, 2023 order granting Defendant’s motions to compel responses to form interrogatories and special interrogatories. 

Based on the foregoing, Plaintiff’s motion for reconsideration is denied.  

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 18^th day of April 2023