Judge: Stephen I. Goorvitch, Case: 21STCV3858, Date: 2023-02-09 Tentative Ruling

Case Number: 21STCV3858    Hearing Date: February 9, 2023    Dept: 39

Jonathan Hemphill v. Andrea Riser-Zanders

Case No. 21STCV3858

Motion for Reconsideration

            Plaintiff Jonathan Hemphill (“Plaintiff”) moved to compel discovery responses from Defendant Andrea Riser-Zanders (“Defendant”) and moved to deem the matters specified in the Requests for Admission, Set One (“RFAs”) to have been admitted.  Plaintiff’s motion was filed on August 29, 2022, and the hearing was set for November 17, 2022.  At the hearing, Defendant requested a continuance to retain counsel.  The Court granted the request and continued the hearing to January 4, 2023.  Defendant retained counsel, who provided verified responses on December 20, 2023.  Therefore, the Court denied the motion but ordered Defendant to pay sanctions, per Code of Civil Procedure section 2033.280(c). 

            Now, Plaintiff seeks reconsideration of that decision.  Plaintiff argues that “[t]he operative date by statute that allows correction to be made of a request to deem admitted must be made prior to the initial setting of a hearing and in this case should not have been considered ‘AFTER’ the initial setting of a hearing date as of November 17, 2022.”  (Plaintiff’s Memorandum of Points & Authorities, p. 4:9-11.)  There are several problems with Plaintiff’s motion.

            First, Plaintiff’s counsel has failed to comply with Code of Civil Procedure section 1008.  A motion for reconsideration is appropriate only if there are “new or different facts, circumstances, or law” that constitutes good cause to revisit the issue.  (Code Civ. Proc., § 1008(a).)  Plaintiff’s counsel also was required to include an affidavit explaining “what new or different facts, circumstances, or law are claimed to be shown.”  (Ibid.)  Plaintiff’s counsel merely re-argues the prior motion and has not complied with these requirements. 

            Second, Plaintiff’s counsel is incorrect in his argument that the response must be served before the initial hearing on the motion.  The statute states:

If a party to whom requests for admission are directed fails to serve a timely response . . . [t]he requesting party may move for an order that . . . the truth of any matters specified in the requests be deemed admitted. . . .  The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has been served before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.

The statute states that the deadline is “the hearing on the motion,” i.e., the hearing at which the motion is decided, and not the “initial” hearing on the motion.  “If there is no ambiguity in the plain language of a statute, a court presumes the lawmakers meant what they said, and the plain meaning of the language governs.”  (Allen v. Sully-Miller Contracting Co. (2002) 28 Cal.4th 222, 227, 120 Cal.Rptr.2d 795, 47 P.3d 639.)  If the Court continues the hearing on the motion, the Court effectively continues the deadline for a response under section 2033.280(c).  Plaintiff cites no authority to the contrary.    

            Finally, Plaintiff ignores the dictates of Code of Civil Procedure section 473 and “the strong policy in this state that cases should be decided on their merits,” rather than on technicalities.  (Point San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, L.P. (2011) 194 Cal.App. 265, 277.)  Defendant was a self-represented party when she failed to serve verified discovery responses.  She subsequently retained counsel, who corrected the issue.  Had the Court granted Plaintiff’s counsel’s motion, the Court then would have been required to grant Defendant’s motion to seek relief from waiver under Code of Civil Procedure sections 2033.280(a) and 473.  There are no games of “gotcha” in the Los Angeles County Superior Court.

            The record suggests that Plaintiff has violated Code of Civil Procedure section 1008 for filing a motion for reconsideration without a proper basis, per Code of Civil Procedure section 1008(a).  There do not appear to have been any new or different facts, circumstances, or law, and Plaintiff’s counsel did not include the required affidavit identifying the basis for this motion.  A violation of section 1008 may be addressed with sanctions under Code of Civil Procedure section 128.7 on the Court’s own motion.  The Court orders the parties not to file motions for reconsideration absent good cause and provides notice that future violations will be addressed by orders to show cause why sanctions should not be imposed.

CONCLUSION AND ORDER

            Based upon the foregoing, the Court orders as follows:

1.         Plaintiff’s motion for reconsideration is denied.

2.         The Court’s clerk shall provide notice.