Case Number: BC514563 Hearing Date: June 02, 2014 Dept: 93

Defendant Edgar Beverly’s Motion for Reconsideration or in the alternative Motion to Vacate is DENIED.
Plaintiff’s Failure to Comply with CRC

It is always important to follow procedural rules, especially those promulgated in part to make it easier for judicial officers to read and absorb copious amounts of information in a short period of time. CRC 3.1110(f) is one such rule. It requires that each exhibit be separated by a tab extending below the bottom of the page bearing the exhibit designation. It also requires an index to exhibits be provided. Plaintiffs failed to follow this rule. Plaintiffs’ exhibits are not tabbed or indexed. With 5300 cases on the court’s docket, the importance of following these rules to the letter cannot be overemphasized, not to mention that if a party wishes the court to review evidence it submits, the party should follow the applicable procedural rules.

Discussion

On February 13, 2014, the Court granted Plaintiffs’ unopposed motion to quash deposition subpoena issued to minor Plaintiff Alexia Garcia’s school, Victoria Elementary. The Court also awarded sanctions in the amount of $1,560.00 against Defendant and defense counsel. Defendant moves for reconsideration of the sanctions order, or alternatively, to set it aside based on attorney fault. To begin, it bears mentioning that the motion contains no actual analysis. Rather, the motion sets forth a series of facts regarding the events leading up to the hearing on the motion to quash, then sets forth the law. Defendants fail to analyze the facts vis-à-vis the law regarding either basis for relief.

Motion for Reconsideration

Pursuant to CCP § 1008(a):

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.

As stated by the court in Gilberd v. AC Transit, CCP § 1008 governs reconsideration of court orders whether initiated by a party or the court itself. (1995) 32 Cal.App.4th 1494. “‘It is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.’ [Citation.] A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” Id. at 1499. There is a strict requirement of diligence – i.e., 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. Defendant offers no new facts or circumstances to warrant reconsideration. Essentially, the motion is an explanation of why defense counsel failed to oppose the motion to quash, all of which could have been explained at the hearing on the motion to quash, had defense counsel appeared. No new circumstances have arisen between the ruling on the motion to quash and the filing of the instant motion that warrant a reconsideration of the award of sanctions. Therefore, the motion for reconsideration is denied.

Motion to Vacate

Defendant also moves to set aside the sanctions award, or modify it pursuant to CCP § 473(b), which states in relevant part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

The particular basis for relief—mistake, inadvertence, surprise, or excusable neglect—is not articulated in the motion. Defense counsel submits a declaration stating that she assumed Plaintiff’s counsel received a copy of the certificate of no records from Victoria Elementary, which was executed on December 4, 2013. Motion, Maxwell Decl., ¶¶ 6-7. The certificate of no records demonstrated that the school could not comply with the deposition subpoena. Based on this assumption, defense counsel’s secretarial staff indicated that no appearance at the quash hearing was necessary (although it is not clear to whom this was indicated). Motion, Maxwell Decl., ¶ 9. However, there is no evidence that the certificate of no records was received by Plaintiffs’ counsel. Plaintiffs served an objection to the subpoena on December 13, 2013. The only reasonable inference here is that plaintiffs were not aware that a certificate of no records had been executed, otherwise they would not have served an objection. Motion, Maxwell Decl., ¶ 7. Plaintiffs’ counsel also made numerous attempts via fax, mail, and voicemail to contact defense counsel about the subpoena starting on December 10, 2013. Oppo., Sansour Decl., ¶ 7. There is no explanation whether the fax and letter mailed were or were not received or why this message was not communicated to defense counsel. Defendant only contends that no message was left with her secretary. Motion, Maxwell Decl., ¶ 13. Finally, defense counsel states she was on vacation from December 13 to December 31, 2013. Motion, Maxwell Decl., ¶ 14. Even if she was on vacation, there is no explanation as to why she did not immediately contact Plaintiffs’ counsel upon returning to the office and discovering that the motion to quash had been filed on December 19, 2013 sometime between her return and the hearing on the matter. Plaintiffs’ counsel was not aware that defense counsel was out of the office and attempted to contact her on December 13 and 16, 2013, prior to filing the motion. Oppo., Sansour Decl., ¶ 8. Defense counsel even failed to appear for the hearing despite having notice that the motion to quash was still on calendar and the Court had tentatively ruled in Plaintiffs’ favor. Motion, Maxwell Decl., ¶ 12.

Defense counsel’s failure to take any action with respect to the motion to quash despite numerous opportunities may amount to a “mistake” or “inadvertence” such that the Court can set aside the award of sanctions. However, the Court should also consider what terms would be just given the parties’ conduct. Defendant’s failure to communicate regarding the subpoena and motion to quash does not appear reasonable. Finally, there appears to be no reason to reduce the amount of sanctions. In ruling on the motion to quash, the Court determined that Plaintiffs were entitled to sanctions of $1,560.00. Defendant argues that Plaintiff’s counsel’s decision to appear at the hearing, thereby incurring additional fees, was unreasonable given his submission on the Court’s tentative. Motion, Maxwell Decl., ¶ 12. Yet there is no evidence that defense counsel contacted Plaintiffs’ counsel the day before the hearing to discuss his appearance or discuss the ruling. Plaintiffs’ counsel was entitled to appear, and incurred costs as a result. Therefore, the request to vacate or modify the sanctions order is also DENIED.

Plaintiffs are ordered to give notice.

[As of May 30, 2014, the court has not received a reply brief. It is untimely at this point and if one has been filed, it will not be considered.]