Judge: Walter P. Schwarm, Case: 30-2019-01094012, Date: 2023-08-29 Tentative Ruling

Defendants’ (Global Financial Data Incorporated, Bryan Taylor, and Michelle Huff Kangas) Motion for Reconsideration  of the March 20, 2023 Order Granting In Part Defendants’ Motion for Protective Order (Motion), filed on 4-4-23 under ROA No. 716, is DENIED.

Code of Civil Procedure section 1008, subdivision (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.”

In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 (Herr) explains, “Code of Civil Procedure section 1008 requires that a party seeking reconsideration do so ‘within 10 days after service upon the party of written notice of entry of the order. . . .’ [Citation.] A motion for reconsideration must be based on new or different facts, circumstances or law [citation], and facts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’ [Citation.] In addition, a party must provide a satisfactory explanation for failing to offer the evidence in the first instance.  [Citation.]” Pinela v. Nieman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237 (Pinela), states, “If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” (Code Civ. Proc., § 1008, subd. (c).) Even without a change of law, a trial court may exercise its inherent jurisdiction to reconsider an interim ruling. [Citation.]” (Footnote 5 omitted.)

The Motion requests the court to reconsider its ruling regarding Defendant—Michelle Huff Kangas Motion for Protective Order (Motion for PO) issued on 3-20-23. (Motion; 3:2-10 and (3-20-23 Minute Order.).)  The Motion relies on new facts based on the deposition of Pierre Gendreau that occurred on 2-9-23, and on People v. Espinoza (2002) 95 Cal.App.4th 1287. (Motion; 4:3-20.)   The Motion states, “As a result the new facts relating to the CJR uncovered in the February 9, 2023 deposition of Mr. Gendreau, the Court should reconsider its March 20, 2023 Minute Order and issue a protective order prohibiting Plaintiff from seeking testimony related to the subject matter of the CJR, unless and until Plaintiff obtains an order from the Juvenile Court authorizing such testimony.” (Motion; 7:9-12.)

Plaintiff’s (Kevin Iwanaga) Opposition to Defendant Michelle Huff Kangas’ Motion for Reconsideration of the March 20, 2023 Order Granting In Part Defendant’s Motion for Protective Order (Opposition), filed on 8-16-23 under ROA No. 792, states, “The alleged “new facts” are from a deposition that took place on February 9, 2023 – before the hearing on the motion for protective order and more than a month before the Court’s ruling. (Def. Motion at p. 3:11-14.) If the deposition of Pierre Gendreau actually changed anything with respect to Michelle Kangas’s motion for a protective order, Defendants could have raised it at the hearing on the motion or before the Court made its ruling. Defendants did not do so.” (Opposition; 2:26-3:1.)

Defendants’ Reply to Plaintiff’s Opposition (Reply), filed on 8-22-23 under ROA No. 796, asserts, “Defendants could not bring new evidence at the time at the hearing because such new evidence would not have been considered by the Court on the day of the hearing. Moreover, Plaintiff certainly would have objected to Defendants’ submission of new evidence at the time of the hearing. As such, Defendants’ only option was to bring the new facts to the Court’s attention in a motion for reconsideration, which they did.” (Reply 3:19-25.)

It is undisputed that Mr. Gendreau’s deposition took place before the 2-14-23 hearing on Defendant—Michelle Huff Kangas’ Motion for PO.  Defendants were aware of these facts at the hearing on 2-14-23, and did not bring them to the court’s attention.  The facts from Mr. Gendreau’s 2-3-23 deposition were not new or different because Defendants were aware of the these facts on 2-14-23.   Defendants’ contention that they could not introduce information from Mr. Gendreau’s deposition at the 2-14-23 hearing because the court would not accept such information or because Plaintiff would object does not constitute a satisfactory explanation.  This explanation is unsatisfactory because it does explain why Defendants did not bring these facts to the court’s attention on 2-14-23 to determine how the court would proceed.  Thus, the court DENIES the Motion because it is not based on new or different facts.

Assuming that the Motion is based on new or different facts, the court would still DENY the Motion.  People v. Espinoza (2002) 95 Cal.App.4th 1287, 1314-1315 (Espinoza), states, “Consequently, if the presentation of FM's proposed testimony amounted to inspection of a ‘juvenile [dependency] case file’ or “information relating to the contents” of a juvenile dependency case file, then the proposed testimony could not be presented without a juvenile court order authorizing its disclosure. The juvenile court may order disclosure of a file or information relating to the contents of a file after a noticed hearing ‘if disclosure is not detrimental to the safety, protection, or physical or emotional well-being of a child.’ (§ 827, subd. (a)(3).) [¶] FM's proposed testimony was not a juvenile court petition, probation report or any other document and therefore was not a ‘juvenile case file’ as that term is defined in section 827. Nor was FM's proposed testimony “information relating to the contents of” a juvenile case file. FM's proposed testimony was based on FM's personal observations acquired from her one-on-one interaction with L. while she served as L.'s foster parent. There was no indication that FM had had any access to L.’s juvenile dependency case file or that her testimony would be based on any information related to that file. Based solely on the statutory language, which is unambiguous, FM's proposed testimony would not have amounted to the disclosure of a ‘juvenile [dependency] case file’ or of ‘information related to the contents of’ a juvenile dependency case file and therefore did not come within section 827, subdivision (a)(3)' s requirement of a court order authorizing disclosure of such a file or information.”

The court’s 3-20-23 Minute Order states in part, “Although Welfare and Institutions Code section 827 protects the disclosure of the contents of the CJR, Welfare and Institutions Code section 827 does protect the disclosure of the underlying facts contained in the CJR from a source other than the CJR.”  Espinoza specifically explains that a witness’ testimony based on the witness’ personal observation acquired is not disclosure of a juvenile dependency case file or the information related to the contents of a juvenile dependency case file.  Here,  although the subject matter of the alleged statements and conduct may have overlapped with the subject matter of the Confidential Juvenile Report, witness testimony based on the witness’ personal observation of  Defendant—Kangas’ conduct does not amount to disclosure of the contents of the CJR.  A witness’ testimony regarding the witness’ personal observations of Defendant—Kangas’ statements or conduct in the workplace do not amount to disclosure or dissemination of the Confidential Juvenile Report.

Thus, after reconsideration, the court DENIES the Motion because the court’s 3-20-23 Minute Order is consistent with Espinoza because it limited Plaintiff’s discovery to Defendant—Kangas’ discussions with employees of Global Financial Data, Inc.  The court will clarify the 3-20-23 Minute Order to limit Plaintiff’s discovery to a witness’ personal observations of Defendant—Kangas’ conduct.

Based on the above, the court DENIES Defendants’ (Global Financial Data Incorporated, Bryan Taylor, and Michelle Huff Kangas) Motion for Reconsideration  of the March 20, 2023 Order Granting In Part Defendants’ Motion for Protective Order filed on 4-4-23 under ROA No. 716. 

Plaintiff is to give notice.