Judge Ralph C. Hofer, Case Number: BC648515, Date: 2024-01-12 Tentative Ruling

Plaintiff Mark Ellensohn alleges that on June 9, 2015, plaintiff was traveling on Interstate 5 southbound approximately 100 feet north of Alameda Avenue in the City of Burbank, where a low hanging live and uncovered electrical wire was stretched across the freeway, hanging at such a height that it posed an unreasonable and foreseeable risk of contact by tall vehicles passing below.

Plaintiff alleges that as he was approaching the site of the overhanging electrical wire, a tall truck ahead of plaintiff’s vehicle struck the wire, causing the wire to fall and strike the windshield of plaintiff’s vehicle, causing a significant blast of electricity and light, an explosion. The wire became entangled around plaintiff’s vehicle, forcing plaintiff’s vehicle to slow down and pull to the side of the road. Plaintiff alleges that immediately after the collision, although plaintiff was visibly shaken up, he was unaware of any personal injuries resulting from the collision, but that several months later he began experiencing vision deficiencies, and after medical professionals were unable to determine the cause or source of plaintiff’s problem, plaintiff underwent a surgical procedure on May 2, 2016, during which plaintiff’s ophthalmologist observed fluid in his right eye and concluded that the damage to the eye was consistent with damage due to exposure to an intense burst of bright light.

On June 1, 2016, plaintiff underwent a surgical procedure on his left eye, and plaintiff’s ophthalmologist advised him that, in his opinion, the electrical explosion during the collision caused plaintiff’s eye damage. Plaintiff was further advised that he had sustained permanent vision loss and permanent damage. Plaintiff alleges that as a result of the intense bright explosion, he has suffered damage to his eye, including permanent vision loss and permanent damage, as well as nervous suffering and mental anguish, diminished sense of direction, loss of earnings, loss of future earnings, and loss of earning capacity.

On March 11, 2022, the court heard an ex parte application by HHS Construction for an order compelling plaintiff to show up at his IME scheduled for March 14, 2022 with defendant’s expert, Dr. Ted Evans. The application was granted, and the court signed and evidently filed the order on the ex parte application, which order ordered plaintiff to appear for the IME on March 14, 2022 with Dr. Evans.

The file shows that on March 17, 2022, the court heard an ex parte application brought by HHS Construction for an order that the IME go forward, and that plaintiff be sanctioned for not completing the IME on March 14, 2022. The court at the hearing denied the ex parte application without prejudice to seeking sanctions related to the aborted IME on March 14, 2022.

On August 19, 2022, defendant HHS Construction brought a motion for monetary sanctions, which was granted, the court finding that plaintiff failed to obey the court’s March 11, 2022 order, and awarding to defendant HHS Construction the reasonable expenses incurred due to plaintiff’s misuse of the discovery process, pursuant to CCP sections 2023.010 and 2023.030, in the sum of $3,826.15.

“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 motion in the notice of motion seeks reconsideration of a court order in this matter made on August 19, 2022, awarding discovery sanctions in favor of defendant HHS Construction. The opposition indicates that the order was signed and entered on August 19, 2022, and written Notice of Ruling of that order was served on August 23, 2022. The Notice, attaching the court’s minute order and the signed order, with proof of service showing service by email on August 23, 2022 is attached to the opposition. [Hayes Decl., para. 3, Ex. 1].

Permitting a two-court day extension permitted under CCP section 1010.6, the last day upon which plaintiff could have timely filed a motion for reconsideration was September 4, 2022, well over a year ago. See CCP § 1010.6(a)(4).

The motion does not explain when the stay was imposed, which appears to have been well after the September 4, 2022 deadline had already expired. The file shows that in a minute order dated July 13, 2023, the court ordered the case stayed retroactively to 03/05/2023 while a writ was pending. This order staying the case was long after the deadline had already expired.

In addition, the moving papers concede that the stay was lifted on November 27, 2023. Ten days from this date would have expired no later than December 11, 2023, which was also well before the date the motion was served and filed on December 19, 2023. The motion accordingly is denied as untimely.

The opposition also argues that the motion must be denied for failure of plaintiff to comply with the mandatory procedural requirement for bringing such a motion of stating essential information by affidavit. As noted above, there has been no declaration at all submitted with the moving papers.

“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.”

“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

Here, the failure to file a declaration renders the motion insufficient, and also makes it difficult for the court to ascertain what order is at issue, and what new or different facts, circumstances or law is being relied upon. The motion is denied on the grounds no affidavit has been submitted in support of the motion in violation of CCP section 1008.

“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

Plaintiff spends a considerable portion of the moving papers arguing that in fact plaintiff and plaintiff’s counsel complied with the prior order concerning the recording of the IME, that in actuality it was Dr. Evans that did not proceed according to the IME Notice when he began testing before taking plaintiff’s history, and that the court incorrectly found that plaintiff and plaintiff’s counsel had responsibility for ensuring that the IME proceed as ordered.

To the extent plaintiff appears to argue that these are new facts or circumstances, they are not new, but were in existence well before the previous hearing at which the determination was made whether plaintiff complied with the previous order, and were, as is evident from the court’s detailed minute order from August 19, 2022, argued at the hearing, and already considered by the court. [See Hayes Decl., Ex. A, Ex. 1, Minute Order, pp. 8-9].

“Plaintiff does not indicate that he was confused by the order in which Dr. Evans was conducting the examination, or that he did or was told to inform Dr. Evans that he had a separate recording device with him.

Defendant in reply points out that plaintiff’s counsel had in the email exchange before the IME left the exchange with the position that plaintiff would “be recording the entire examination on his phone.” [Hayes Decl., Ex. 3, final email from Harper]. Plaintiff’s counsel has also consistently since the IME taken the position that plaintiff was entitled to record the entire examination and retain a copy of the recording for himself, including in opposition to defendant’s previous motion for a protective order. This recitation is the first time plaintiff’s counsel has indicated in writing to the court that plaintiff was prepared to proceed with two recordings, but was simply confused.” (See exhibit “A” to Exhibit 1”, pages 8-9. Emphasis added.)

In any case, the fact remains that even under the scenario presented by plaintiff, Dr. Evans correctly understood his professional responsibilities and that the portion of the examination plaintiff intended to record on his cell phone and take with him could not be recorded and leave the possession of Dr. Evans. If plaintiff had another recording device upon which he could make the recording and leave it with Dr. Evans, plaintiff’s counsel appears to concede that no one mentioned it to Dr. Evans.

Under the circumstances, with the court order in place, it was incumbent upon plaintiff or plaintiff’s counsel to bring up that plaintiff had a separate recording device and offer to comply with the court order.” “Under the circumstances, the court finds that plaintiff failed to obey the court’s previous order, causing the IME to not proceed as ordered. The court awards to defendant the reasonable expenses defendant has incurred due to the disobedience of the court order and suspension of the IME.”

When bringing a motion for reconsideration based on new facts, the moving party must present “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” Garcia v. Hejmadi, (1997) 58 Cal.App.4th 674, 690.

The motion fails to explain what counsel would have added to the previous written opposition to the motion and what was apparently extensive argument at the hearing. No new or different facts or circumstances are presented which would satisfy the requirements for the court reconsidering its previous order.

The motion also appears to argue that the motion is based on new law, in apparent reliance on Randy’s Trucking. [See Motion, p. 4]. As pointed out in the opposition, plaintiff does not even provide a citation for this case and does not provide any legal discussion of this case which would apply to the subject order, which was an order determining whether a previous court order had been violated by plaintiff and plaintiff’s attorney’s conduct in connection with the court ordered IME.

The motion indicates that Randy’s Trucking interpreted the IME statute and was very specific that the examinee’s counsel had the right to all data and that both the doctor and examinee could record the examination. Again, no citation to the legal authority is provided. As argued in the opposition, the previous discovery sanctions motion and the hearing on it had nothing to do with whether plaintiff’s counsel was entitled to a recording of the examination, but whether the court’s order had been violated.

To the extent that prior order concerning the conduct of the IME is challenged, this is not mentioned in the moving papers, and not developed in the motion. The minute order on the sanctions motion in fact notes that the parties at that point had agreed to the conditions set forth in the IME notice which was the subject of the motion which argued that the IME notice which became the order of the court had been violated:

“There was no objection concerning the conditions set forth in that IME notice at the March 11, 2022 hearing on the part of plaintiff, and defendant has submitted a transcript of the proceedings reflecting that. [Hayes Decl., para. 4, Ex. 2]. Defendant has also submitted a transcript of a previous hearing conducted in December of 2021 in which plaintiff’s counsel agreed with defendant’s counsel that the IME with Dr. Evans would go forward on January 24, 2022, and the parties had “worked out all of our issues that [plaintiff’s counsel] had with that…” When defendant’s counsel asked, “Is that correct, Barbara?” plaintiff’s counsel responded, “That is correct.” [Hayes Decl., para 6, Ex. 4, p. 7:21-27].”

“(d) A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.”

“Notice of motion shall be served as provided in Section 1010 but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper...is not withdrawn or appropriately corrected.”

The opposition concedes that defendant has failed to comply with the statutory requirements, indicating that when plaintiff’s motion was served just before the holidays, leaving only two days to meet and confer and prepare a compliant Section 128.7 motion, defendant “had no choice” but to file an opposition to the motion. [Hayes Decl., para. 6]. There is no reason why a motion for sanctions could not have been promptly served in accordance with the statutory provisions at the same time an opposition was prepared. Defendant accordingly has waived any claim for monetary sanctions.

The motion is also not accompanied by a declaration in support of the motion, which declaration is required and must indicate what application was made before, what order or decisions were made which plaintiff would like to have reconsidered, and what new or different facts, circumstances, or law on which the motion is based, as required under CCP § 1008.

The motion appears to argue primarily the facts surrounding the conduct of the subject IME, which did not proceed as ordered, which facts are not new but were known to plaintiff at the time of the hearing pursuant to which the court made its previous order and were in fact argued to the court at that time. This argument is not a basis for reconsideration.

To the extent the motion mentions the existence of new law, plaintiff fails to even identify the case citation to the purported new law, fails to submit any substantive discussion of the case law, or explain how it should change the previous order, which was a determination that plaintiff had failed to comply with a court order concerning attendance at an IME, and that defendant had established that the failure to comply with the court order resulted in expense to defendant which were properly shifted to plaintiff and plaintiff’s counsel as an award of monetary sanctions.

To the extent the motion intends to argue that the Court’s order with respect to the defendant’s expert’s conduct of the IME was improper, that order does not appear to be the subject of the motion, or the order challenged. That order concerning the IME procedures set forth in the IME notice was also agreed to by the moving party. The order actually challenged here found that plaintiff had failed to comply with the court’s previous order. There are no facts or law presented which would warrant reconsideration of the court order determining that the previous order was in fact violated. To the extent the argument is that the previous order violated was made in error, based on new law, plaintiff has not moved to reconsider that order, which motion would also be untimely.

Request in the Opposition for sanctions pursuant to CCP section 128.7 is DENIED. Defendant/Cross Defendant HHS Construction, Inc. has failed to follow the mandatory requirements for an award of such sanctions, including failing to file a separate motion and to permit the appropriate 21-day safe harbor to permit plaintiff to withdraw the motion. The opposition concedes that defendant/cross-defendant made a choice to forego following the procedural requirements.

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