Case Number: EC061526    Hearing Date: August 22, 2014    Dept: A

Kilby v Air Components West

MOTION FOR RECONSIDERATION

Calendar: 10
Case No: EC061526
Date: 8/22/14

MP: Plaintiff, Charles Kilby
RP: Defendants, Ariana Contraino and Violat Warfield

RELIEF REQUESTED:
Order reconsidering and denying the request for discovery sanctions.

DISCUSSION:
This case arises from the Plaintiff’s claim that the Plaintiff, Charles Kilby, entered into an oral agreement with William Kilby in March 1994 under which the Plaintiff worked as the apprentice of William Kilby and came to assume the responsibilities of William Kilby at Air Components West, which is a defense contractor. After William Kilby passed away, the Defendants took acts to harass the Plaintiff and to prevent the Plaintiff from obtaining the return on the Plaintiff’s life-time investment of his salary into Air Components West.
Trial is set for December 29, 2014.

The Plaintiff has filed a motion to reconsider the August 4, 2014 order that imposed monetary sanctions of $935 on the Plaintiff. The monetary sanctions were imposed under the Defendants’ request for monetary sanctions in their motion to deem their requests for admissions admitted. The Court denied the motion, but imposed monetary sanctions because the Plaintiff had served responses after the Defendants had already incurred attorney’s fees and costs to draft and file the motion.

Under CCP section 1008(a), any party affected by a Court’s order may seek reconsideration of that order by filing an application within 10 days after service of the notice of entry of the order. The application must be based on new or different facts, circumstances, or law, and be made to the same judge that made the order (italics added for emphasis). The party making the application must 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.
CCP section 1008(e) states that CCP section 1008 specifies the Court’s jurisdiction with regard to applications for reconsideration and that no application to reconsider any order may be considered unless made according to section 1008. The language of CCP section 1008(e) makes it absolutely clear that a Court’s power to hear successive motions is restricted to motions that comply with CCP section 1008, subdivisions (a) and (b). Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.

Here, the Plaintiff did not comply with the requirement that he accompany his motion with a declaration identifying 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 Plaintiff’s motion does not include any declaration.

Accordingly, the Court will deny the Plaintiff’s motion for reconsideration because the Court is without jurisdiction to hear his motion.

Further, the Plaintiff identifies no new facts, law, or circumstances to reconsider the order. The Plaintiff argues that the order is improper because it was made at a “non-appearance” hearing. However, the Court issued the order after it had taken the matter under submission. The Plaintiff offers no legal authority holding that it is improper for the Court to issue discovery sanctions after it takes a motion under submission.
Instead, the order was proper. The Defendants had provided notice that they were seeking monetary sanctions in the motion for an order deeming the Plaintiff to have admitted their requests for admissions when they filed their motion on June 19, 2014. The Court took the matter under submission after the hearing on July 18, 2014 because the Plaintiff asserted that he had filed responses before the hearing. The Court then found the Plaintiff’s responses and imposed the monetary sanctions in an order issued on August 4, 2014. There are no grounds to find that the Court lacked authority to impose the monetary sanctions under the Defendants’ motion.

Therefore, the Court will deny the Plaintiff’s motion for reconsideration because the Plaintiff did not comply with CCP section 1008(a) and because the Plaintiff does not identify any new facts, law, or circumstance for reconsidering the August 4, 2014 discovery order.

RULING:
DENY motion.