Hale et al. v. Social Valley, LLC, Bic Pho, Steve Ernst		CASE NO. 112CV230653
DATE: 25 September 2014	TIME: 9:00	LINE NUMBER: 6

This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Wednesday 24 September 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 25 September 2014, the motion of Defendant  Bic Pho (“Defendant”)[1] for reconsideration of this Court’s Order 8 August 2014 issuing terminating sanctions and teaming matters to be admitted was argued and submitted.

Plaintiffs filed formal opposition to the motion.

The Opposition to the Motions were untimely [(Code of Civil Procedure, § 1005(b)] and will / will not be considered.  (Rule of Court 3.1300(d).[2])

All parties are reminded that all papers must comply with Rule of Court 3.1110(f).[3]

I.       Statement of Facts.

Case No. 112CV230653 is entitled Hale v. Social Valley, LLC, Bic Pho, and Steve Ernst.

Case No. 113CV244046 is entitled Johnson v. Social Valley, LLC, Bic Pho, and Steve Ernst.

This case is a breach of contract claim. Defendant Social Valley represented to Plaintiffs that it was planning an event in September of 2012 at California’s Great America, an amusement park, and needed famous recording artists to perform at the event. In April of 2012, Plaintiff Johnson entered into an agreement with Defendants on behalf of The Conglomerate Group, LLC whereby Plaintiffs would secure recording artists to perform at Defendants’ event in exchange for a fee. Plaintiffs secured such talent but were informed on 5 May 2012 that Social Valley had not acquired the necessary capital to fund the event, including The Conglomerate Group’s contract. This suit for breach of contract followed.

On 17 August 2012, Plaintiff Hale filed a case for breach of contract and fraud against Defendant.  On 3 April 2013, plaintiff Johnson filed a case for breach of contract and fraud against Defendant. Plaintiffs’ cases against Defendant were consolidated on 18 June 2013.

A summary judgment motion is set for quarter 1 October 2014.  Jury trial is set for 17 November 2014.

II.      Discovery Dispute.

On 8 August 2014, Plaintiffs’ Motions to deem matters admitted by Defendants Bic Pho and Steve Ernst and for mandatory sanctions re: requests for admissions, set two; and for monetary and terminating sanctions were argued and submitted.  Mr. Pho’s counsel appeared at the hearing on the matter without notice to the Court or to opposing counsel.

This Court granted the motions as follows:

“Plaintiff’s Motion to Deem Matters Admitted against Defendant Steve Ernst is DENIED.

Plaintiff’s Motion to Deem Matters Admitted against Defendant Bic Pho is GRANTED.

Plaintiff’s Monetary Sanctions for Motion to Deem Matters Admitted against Defendants is GRANTED in the amount of $960.00.

Plaintiffs’ Motion for Terminating Sanctions against Defendant Bic Pho is GRANTED.

Plaintiffs’ Motion for Monetary Sanctions relating to Terminating Sanctions against Defendant Bic Pho is DENIED.”

Defendant Bic Pho now asks this Court to reconsider the orders adverse to him.  He claims that on 17 July through 11 in August of this year he was on a trip to Asia to visit family and friends.  He received correspondence from his attorney at his business office.  However, he did not go to his business office until 21 August 2014.  He did not know about the motion for terminating sanctions before his trip.  Had he known, he would have not only opposed the motion but he would have provided plaintiffs with proposed responses which would have been substantially the same as his codefendants.

He also agreed that he would appear for a deposition.

III.     Analysis.

A.  Motion for Reconsideration

Code of Civil Procedure, § 1008 states in its entirety:

(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.

(b)  A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(c)  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.

(d)  A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7. In addition, an order made contrary to this section may be revoked by the judge or commissioner who made it, or vacated by a judge of the court in which the action or proceeding is pending.

(e)  This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.

(f)  For the purposes of this section, an alleged new or different law shall not include a later enacted statute without a retroactive application.

(g)  An order denying a motion for reconsideration made pursuant to subdivision (a) is not separately appealable. However, if the order that was the subject of a motion for reconsideration is appealable, the denial of the motion for reconsideration is reviewable as part of an appeal from that order.

(h)  This section applies to all applications for interim orders.

One of the rights of a court is not have the administration of justice indeed good and burdened by repeated motions on which it has already ruled.  (San Francisco v.  Muller (1960) 177 Cal. App. 2d 600.)  Accordingly, Code of Civil Procedure, § 1008 governs motions for reconsideration, by the parties or by the court on its own motion.  It is the exclusive means for modifying, amending or revoking an order.  The limitations are expressly jurisdictional.  (Morite of California v.  Superior Court (1993) 19 Cal. App. 4th 485, 490.)

Defendant Bic Pho has not shown any new facts as to why he did not file opposition other than he was out of the country while the underlying motion was pending.

More to the point, he has not provided verified and code compliant discovery responses other than to state his responses would be substantially similar to those of his codefendants.

The motion of Defendant Bic Pho for reconsideration of the Order of 8 August 2014 is DENIED

         B.  Sanctions.

In the opposition papers, Plaintiff makes a request for monetary sanctions in the amount of $900 for opposing this motion, calculated at three hours at a rate of $300 per hour.

Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”  See Rule of Court 2.30.

The request is code-compliant.  However, this Court does not believe that it would take three hours to prepare the opposition here.  The Court will allow 1 1/2 hours and thus will order that Defendant Bic Pho pay the sum of $450.00 to counsel for Plaintiffs within 20 days of the date of the filing of this Order.

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IV.     Order.

The motion of Defendant Bic Pho for reconsideration of the Order of 8 August 2014 is DENIED.

The request of Plaintiffs for monetary sanctions incurred in opposition to this motion is GRANTED.  Defendant Bic Pho pay the sum of $450.00 to counsel for Plaintiffs within 20 days of the date of the filing of this Order.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

 

[1] His codefendants, Social Valley LLC and Steve Earnest are unaffected by this motion.

[2] “No paper may be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must so indicate.”

[3] “Each exhibit must be separated by a hard 8½ x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided. Pages from a single deposition and associated exhibits must be designated as a single exhibit.”