Judge: Serena R. Murillo, Case: 21STCV05760, Date: 2023-02-02 Tentative Ruling
Case Number: 21STCV05760 Hearing Date: February 2, 2023 Dept: 29
TENTATIVE
Defendant’s motion for reconsideration of the
Court’s November 29, 2022 ruling is DENIED.
Legal
Standard
Code of Civil
Procedure Section 1008(a) provides that “[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 . . . [may] 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.” (Code Civ. Proc., § 1008(a).) A trial court has
discretion with respect to granting a motion for reconsideration. (New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206,
212.)
Section 1008,
subdivision (e) states: “No application to reconsider any order ... may be
considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008(e).) “Section 1008 is
the exclusive means for modifying, amending or revoking an order. That
limitation is expressly jurisdictional.” (Gilberd v. AC Transit (1995)
32 Cal.App.4th 1494, 1499.)
“A motion for
reconsideration may only be brought if the party moving for reconsideration can
offer ‘new or different facts, circumstances, or law which it could not, with
reasonable diligence, have discovered and produced at the time of the prior
motion. (Citations.) A motion for reconsideration will be denied absent a strong
showing of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; Forrest
v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th
183, 202 disapproved of and overruled on unrelated grounds
in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172
(footnote 3); New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 212–213; Baldwin v.
Home Sav. of America. (1997) 59 Cal.App.4th 1192,
1199.)
There
is a strict requirement of diligence on the moving party; 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.)
To
obtain relief under CCP §473 based on attorney misconduct, a party “[g]enerally . . . must plead
that the neglect or omission of his [or her] attorney was excusable, because
inexcusable neglect is ordinarily imputed to the client, and his [or her]
redress is an action for malpractice.” (Aldrich v. San Fernando Valley
Lumber Co. (1985) 170 Cal. App. 3d. 725, 738; see Zamora v. Clayborn
Contracting Group, Inc. (2002) 28 Cal. 4th 249, 258, “’[a]
party who seeks relief under section 473 on the basis of mistake or
inadvertence of counsel must demonstrate that such mistake, inadvertence, or
general neglect was excusable because the negligence of the attorney is imputed
to his [or her] client and may not be offered by the latter as a basis for
relief’”; Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 898
(“[t]he client’s redress for inexcusable neglect by counsel is, of course, an
action for malpractice”).)
Discussion
Defendant moves for reconsideration of the Court’s November 29,
2022 order compelling Defendant’s employee, James, Hailey’s deposition.
Defendant argues that it has new or different facts, circumstances, or law,
which justify the Court’s reconsideration of its order. Such purported new facts and circumstances
that this Court did not consider are: (1) Hailey was not an employee of Defendant
at the time the motion was granted; (2) Defense counsel did not follow-up as to
whether Hailey was still an employee until the morning of the November 29,
2022; (3) Plaintiff insisted on an in-person deposition of Hailey, which
defense counsel objected to via telephone conversation. (4) Hailey was
uncooperative, and defense counsel made Hailey’s lack of cooperation known to
plaintiff’s counsel on March 14,
2022; Due to Hailey’s lack of
cooperation, there was no way to get a hold of him, and therefore no way to
confirm to plaintiff’s counsel whether he was still employed by Bluestar
Trucking, LLC; (5) The person most knowledgeable for Bluestar Trucking, Manibar
Atwal, was out of the country in an area with limited internet access for much
of this year, making it difficult to communicate with him until the latter
portion of the year.
Timeliness
Here, the Court granted Plaintiff’s motion on
November 29, 2022. The Clerk gave notice on the same day.
Defendant’s present motion was filed and served on December 14, 2022. Thus,
under CCP section 1008(a), and 1013(a), the motion is timely. (“Service is complete at the
time of the deposit, but any period of notice and any right or duty to do any
act or make any response within any period or on a date certain after service of the document, which time
period or date is prescribed by statute or rule of court, shall be extended
five calendar days, upon service by mail, if the place of address and the place
of mailing is within the State of California….” CCP section 1013(a).)
No New or Different Facts
Defendant argues
that she found out Hailey was not an employee of Defendant on November 29,
2022, and told the Court at oral argument. Thus, these are not new or different
facts, and this was relayed to the Court at the hearing on the motion. Assuming
arguendo that they are new facts, Defendant is still required to show
diligence. As to the argument that Hailey is uncooperative and that Plaintiff insisted
on an in-person deposition, although these may be considered new facts, again, Defendant
is still required to show diligence.
No Diligence
Defense counsel
admits she did not follow up as to whether Hailey was still an employee until
the morning of the November 29, 2022 hearing date. This shows a lack of
diligence. Defense counsel could have followed up before filing the opposition
to Plaintiff’s motion, but has not explained why she did not. There is a strict requirement of diligence on the
moving party; 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.) While Defendant further argues that Hailey was
uncooperative and the person most knowledgeable was out of town, there are
plenty of other representatives of Defendant that defense counsel could have
contacted at the time of filing its opposition to ascertain whether Hailey was
a current employee, but chose not to. Again, this is not diligent. As to Hailey
being uncooperative and Plaintiff insisting on an in-person deposition,
Plaintiff has not made any argument as to why these “new facts” were not
presented in its opposition, and thus, has failed to show diligence. In sum,
because Defendant has not satisfied the diligence requirement, the motion for
reconsideration is DENIED.
CCP Section 473
Plaintiff also moves for relief under CCP section 473. However, Defendant does
not cite to any excusable neglect by its counsel. Defense counsel admits
she did not follow up to see if Hailey was an employee until the day of the
hearing on the motion to compel his deposition. (See Zamora, supra, 28
Cal.4th at 258, “’[c]onduct falling below
the professional standard of care, such as failure to timely object or to
properly advance an argument, is not . . . excusable,’” and ‘”[t]o hold
otherwise would be to . . . effectively eviscerate the concept of attorney
malpractice’”.) “Section 473 cannot be used to remedy attorney mistakes,
such as failure to provide sufficient evidence in opposition to a summary judgment
motion. There is nothing in Section 473 to suggest it was intended to be
a catch-all remedy for every case of poor judgment on the part of counsel which
results in dismissal.” (Wiz Technology Inc. v. Coopers & Lybrand
LLP (2003) 106 Cal. App. 4th 1, 17. See
also Cochran v. Linn (1984) 159 Cal. App. 3d 245, 251 (negligence in
failing to plead the case properly, or to produce sufficient evidence to oppose
a summary judgment, does not warrant relief under section 473).) As such, CCP
section 473 cannot afford Defendant relief as there was no excusable neglect.
Conclusion
Based on the foregoing, Defendant’s motion for reconsideration of
the Court’s November 29, 2022 ruling is DENIED.
Moving
party is ordered to give notice.