Judge: Teresa A. Beaudet, Case: 19STCV17045, Date: 2023-04-20 Tentative Ruling

Case Number: 19STCV17045    Hearing Date: April 20, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

            Background

Plaintiff Sol De La Cruz (“Plaintiff”) filed this employment action on May 16, 2019, against Defendants Dayan Property Services, LLC (“DPS”), Fortuna Asset Management Inc. (“Fortuna”), 2222 South Figueroa, LLC, Farhad Abolfathi, and Daryoush Dayan.

On August 30, 2021, Plaintiff filed a Motion in Limine No. 1 to Exclude all Evidence or Mention of Misdemeanor Conviction. On February 10, 2023, the Court issued an Order, inter alia, granting Plaintiff’s Motion in Limine No. 1.

DPS, Fortuna, and 2222 South Figueroa, LLC (collectively, “Defendants”) now move for an order granting reconsideration of the Court’s February 10, 2023 Order granting Plaintiff’s Motion in Limine No. 1. Plaintiff opposes.

            Discussion

Code of Civil Procedure section 1008, subdivision (a) provides:

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.

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, 1500; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342 [“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.”]; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213 [“The burden under section 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.”].)

Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling; that is not a “new” or “different” matter. (Gilberd v. AC Transit, supra, 32 Cal.App.4th at p. 1500.) Moreover, counsel’s mistake based on ignorance of the law is not a proper basis for reconsideration. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.)

Defendants assert that the instant motion for reconsideration is different than “most motions for reconsideration,” as it concerns an order on a motion in limine. In support of this assertion, Defendants cite to Rufo v. Simpson (2001) 86 Cal.App.4th 573, 608, where the Court of Appeal noted that “[a] ruling on a pretrial motion in limine is necessarily tentative because subsequent evidentiary developments may change the context. Ordinarily the opponent of evidence need not object until the evidence is introduced. A pretrial motion in limine is merely an additional protective device for the opponent of the evidence, to prevent the proponent from even mentioning potentially prejudicial evidence to the jury.” (Internal citations and emphasis omitted.)

Defendants also cite to People v. Turner (1990) 50 Cal.3d 668, 708, where the California Supreme Court noted that “[b]ecause in limine rulings on evidence are subject to reconsideration upon full information at trial, an evidentiary objection must be renewed at such time as the evidence is actually offered, or when opposing counsel makes improper argumentative use thereof.” (Internal quotations and citations omitted.) In addition, Defendants cite to People v. Yarbrough (1991) 227 Cal.App.3d 1650, 1655, where the Court of Appeal noted that “[w]e start with the basic judicially created rule that in limine rulings are not binding because the trial court has the power to reconsider, modify or set aside its order at any time prior to the submission of the cause. For that reason it has been held that where there is an in limine ruling that evidence is admissible, the party seeking exclusion must object when the evidence is offered at trial in order to preserve the issue for appeal.” (Internal quotations and citations omitted.)

However, Defendants do not cite to any legal authority demonstrating that Code of Civil Procedure section 1008 is not applicable to a motion for reconsideration of an order on a motion in limine.

In the opposition, Plaintiff asserts that Defendants’ motion is untimely under Code of Civil Procedure section 1008. Defendants’ instant motion was filed on February 21, 2023, and the proof of service filed with the motion indicates that the motion was served by email on February 21, 2023. Thus, the motion was filed and served eleven days after the Court’s February 10, 2023 Order on Plaintiff’s Motion in Limine No. 1. Defendants assert that the 10-day deadline set forth in Code of Civil Procedure section 1008 is not applicable, because the February 10, 2023 Order was not served upon Defendants. The Court notes that the February 10, 2023 Order provides, inter alia, that “[n]otice is waived.” Defendants cite to Novak v. Fay (2015) 236 Cal.App.4th 329, 335-336, where in that case, “[n]o notice of entry of any order made at the July 31, 2013 hearing was ever served on plaintiff. Thus, the 10-day requirement imposed by Code of Civil Procedure section 1008, subdivision (a) is inapplicable.”

            Plaintiff also contends that there are no new or different facts to support reconsideration. The Court agrees. Defendants’ opposition to Plaintiff’s Motion in Limine No. 1 was filed on September 13, 2021. Plaintiff asserts that by the time Defendants filed their opposition to Plaintiff’s Motion in Limine No. 1, all of the alleged “new” facts or evidence Defendants rely upon in the instant motion were already in evidence.

            Indeed, in the motion, Defendants cite to deposition testimony from the depositions of Daryoush Dayan, Farhad Abolfathi, Heather Dacus, and Mary Korkodian in support of Defendants’ assertion that their “new evidence shows MIL No. 1 should be denied.” (See Mot. at p. 5:13-11:17.) The exhibits attached to Defendants’ counsel’s declaration indicate that           Mr. Dayan’s deposition took place on September 2, 2021, Mr. Abolfathi’s deposition took place on July 29, 2021, Ms. Dacus’s deposition took place on July 27, 2021, and Ms. Korkodian’s deposition took place on August 17, 2021. (Vivoli Decl., ¶¶ 3-6, Exs. A-D.) Thus, as Plaintiff notes, all of the subject depositions occurred before Defendants’ September 13, 2021 opposition to Plaintiff’s Motion in Limine No. 1.

            Defendants argue in the motion that they “have provided an adequate explanation for the failure to provide this new evidence before, since Plaintiff’s in limine motion relied on the general rule against the admission of misdemeanor convictions, but without reference to the facts of this particular case, which make clear why the proffered evidence is highly relevant and admissible. As such, Defendants were under no obligation, and were provided with no notice, that they would need to provide the extensive evidence elicited during discovery that makes evidence of Plaintiff’s misdemeanor conviction directly relevant and admissible in this case. That is particularly true because Plaintiff did not present ‘evidence’ of what had and had not

been produced in discovery in this case until his reply brief.” (Mot. at p. 1:16-24.)  

But as Plaintiff notes, Plaintiff’s Motion in Limine No. 1 actually asserts, inter alia, that “[e]vidence of Plaintiff’s conviction bears no relevance to any of the issues in dispute between the parties, is unduly prejudicial, and constitutes inadmissible character evidence. In well over two (2) years of litigation in this case, Defendants have not pled nor otherwise revealed in discovery that Plaintiff’s termination or any other adverse employment action in this case had anything to do with their discovery of Plaintiff’s misdemeanor conviction or the resulting warrant, which they knew about at least two (2) months before terminating Plaintiff’s employment.” (Plaintiff’s August 30, 2021 Motion in Limine No. 1 at p. 3:14-19.) Plaintiff also argued, inter alia, that “[t]he evidence does not have any tendency to make any fact at issue in this matter more or less probable than would be the case if the evidence did not exist. It neither proves nor disproves any of the elements of Plaintiff’s FEHA causes of action for disability discrimination, failure to reasonably accommodate disability, failure to engage in the interactive process, retaliation, or failure to prevent discrimination. Nor does the evidence prove or disprove any of the elements of Plaintiff’s other causes of action…” (Id. at p. 4:12-18.) 

            Plaintiff also notes that deposition testimony cited in the motion does not show that the   witnesses testified that Plaintiff was actually terminated because of his misdemeanor or conviction. (See Mot. at pp. 6:21-11:5.) 

            In addition, Plaintiff argues that “Defendants’ reliance on ‘new facts’ or evidence is…misguided as Defendants repeatedly set forth their complete reasons for terminating Plaintiff’s employment in verified responses in writing…absent is any mention of Plaintiff’s misdemeanor conviction or any related warrant.” (Opp’n at p. 6:19-22, emphasis omitted.)

Plaintiff indicates that on October 28, 2019, DPS served supplemental responses to Plaintiff’s Form Interrogatories – Employment Law, No. 201.1, which requested, inter alia, all reasons for Plaintiff’s termination. (Mozaffari Decl., ¶ 8; Ex. G, Form Interrogatory No. 201.1(a).) DPS’s supplemental responses indicated: “Plaintiff was terminated for poor performance (extensively documented in writing). Plaintiff was not terminated for any disability, but, as it ultimately turns out, for admitting concealing from his employer (who needs advance notice when any employee plans to be unavailable for extended periods of time) a known, upcoming extensive absence from the office. Plaintiff knew – because it was communicated to him many times – that his employer was dependent upon his physical presence at the property and that he needed to communicate to his employer any anticipated inability to work.” (Mozaffari Decl., ¶ 8; Ex. G, Response to Form Interrogatory No. 201.1(a), emphasis in original.)

            Based on the foregoing, the Court does not find that Defendants have demonstrated good cause for reconsideration of the Court’s February 10, 2023 Order on Plaintiff’s Motion in Limine No. 1.

            Conclusion

Based on the foregoing, Defendants’ motion is denied.

Plaintiff is ordered to provide notice of this ruling.

DATED:  April 20, 2023                                ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court