2017-00210102-CU-BC

Alfiya Bogdnova Laub vs. Aaron Grigsby Agency, Inc.

Nature of Proceeding: Motion for Reconsideration

Filed By: Near, Dan

If oral argument is requested, it shall be heard by Judge Rodda at 11:00 a.m.

Cross-Defendant Mercy Di Paolo Insurance Services dba Steve C. Luth Insurance Services’ (“Di Paolo”) motion for reconsideration is DENIED.

As a preliminary matter, the Court disagrees with Di Paolo that no opposition was timely served. CCP 1005(b) provides that the oppositions are to be filed at least nine court days prior to the hearing. Oppositions must be served in a manner reasonably calculated to ensure delivery by no later than the close of the next business day after

the time the opposing papers are filed. Here, the proof of service of the opposition indicates that the opposition was served via federal express on 5/8/2018. Counting

backwards from 5/21/2018, the service was nine court days prior to the hearing.

Indeed, Defendants and Cross-Complainants Aaron Grigsby Agency, Inc. and Aaron Grigsby’s (collectively “Grigsby”) have filed the Federal Express tracking records

showing that Federal Express attempted delivery on May 9th and May 10th, but the office was closed.

Di Paolo moves for reconsideration of the Court’s 4/3/2018 ruling on Grigsby’s motion to compel production of documents from Di Paolo. The Court denied Grigsby’s motion to compel production of documents on the ground that Di Paolo had indicated there were no more responsive documents to the request for production of documents. The

Court noted, however, that Di Paolo’s responses were inconsistent with its document production. As explained in the submitted ruling:

“Di Paolo indicates it never located any records responsive to the request for pay stubs, and documents relating to 30 clients that Gribsby had lost. These documents are responsive to RFP Nos. 10, 13, 14, 15 and 16. Yet, Di Paolo’s responses state ‘responsive documents will be produced.’ Given that Di Paolo is unable to comply with the request, its responses must so state and comply with CCP §2031.230. . . .Thus, Di Paolo must serve a further verified written response in compliance with CCP §2031.230.” (4/3/2018 Order.)

Di Paolo moves for an order “set[ting]-aside that portion of the Court’s April 3, 2018 order which required Di Paolo to serve a further verified written response to the Requests for Production propounded by Defendants. Di Paolo contends that it “has fully complied with its statutory obligation to respond to Grigsby’s Request for Production, that Grigsby asserted a new theory in its Reply to its Motion to Compel, that [Di Paolo] was therefore prevented from responding to Grigsby’s new theory, and had the Court either prevented Grigsby from presenting a new theory in its Reply or allowed [Di Paolo] to respond in writing to Grigsbys’ new theory, the Court would have ruled differently.” (Di Paolo’s MPAs, 2:1-8.)

The motion is denied because Di Paolo offers no “new or different facts, circumstances, or law.” The Court is not convinced that Grigbsy raised a “new theory” in its reply. Indeed, Grigbsy was responding to Di Paolo’s argument that it had served all responsive documents. Moreover, the Court is not convinced that if Di Paolo were allowed to respond “in writing” that the decision would change. Both parties appeared at oral argument, and Di Paolo was provided the opportunity to respond to Grigsby’s argument.

The motion is also denied on the independent ground that Di Paolo’s counsel’s declaration fails to comply with CCP 1008(a).