Case Number: BC700936 Hearing Date: November 07, 2019 Dept: 34

SUBJECT: Motion for Reconsideration

Moving Party: Plaintiff Jessica Gammalo

Resp. Party: None

The motion for reconsideration is DENIED.

PRELIMINARY COMMENTS:

This motion for reconsideration is allegedly filed on behalf of Plaintiff. (See Motion, p. 1:23.) The Court notes that the OSC re sanctions, to which this motion for reconsideration is directed, was for sanctions against Plaintiff’s counsel, not against plaintiff.

BACKGROUND:

Plaintiff commenced this action on April 14, 2018, against defendant for: (1) pregnancy discrimination; (2) retaliation; (3) violation of California Pregnancy Disability Leave Act; (4) wrongful termination in violation of Fair Employment and Housing Act; (5) wrongful termination in violation of public policy; (6) unpaid wages and waiting time penalty.

On January 25, 2019, during a motion to compel hearing, both parties’ counsels conferred with the Court in chambers and Plaintiff’s counsel allegedly recorded this in-chambers conversation on her cell phone. (01/25/2019 Minute Order, p. 2.)

During the January 25, 2019 hearing, “[t]he Court set an Order to Show Cause why Sanctions should not be imposed for the unauthorized recordings of the hearing and the in-chambers discussion, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17.” (01/25/2019 Minute Order, p. 3.) The Court also told Plaintiff that if she “wishes to present any written argument or declaration prior to the hearing,” she may do so and defense counsel was also given an opportunity to respond if defense counsel wanted to. (Id.) The Court also told Plaintiff that “Counsel will also be provided an opportunity to orally show cause why sanctions should not be imposed against her at the hearing.” (Id.)

On March 1, 2019, after the hearing on the OSC re: Sanctions, the Court ordered sanctions of $1,000.00 against Plaintiff’s counsel, Jackie Rose Kruger, for the surreptitious and unauthorized recording of in-chambers conversation, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17. (Court Order re Sanctions, p. 3:13-17.)

On March 20, 2019, Plaintiff filed a motion for reconsideration. On April 2, 2019, Defendant filed a notice of no position re: Plaintiff’s motion for reconsideration.

This motion was originally scheduled to be heard on May 20, 2019. It was then rescheduled to be heard on September 11, 2019. At the 9/11/2019 hearing, the only appearance was by an appearance attorney for Ms. Kruger. The appearance attorney asked for another continuance, but stated that he did not know why Ms. Kruger was asking for the continuance.

The Court again continued the hearing, but stated that no further continuances would be allowed. (See 9/11/2019 Minute Order.)

ANALYSIS:

Plaintiff requests that the Court reconsider its “order dated March 1, 2019 in which the Court ordered Plaintiff’s Counsel to pay monetary sanctions of $1,000.00 to the Superior Court of California, County of Los Angeles, as well as report the monetary sanctions to the State Bar of California . . . on the grounds that new facts and circumstances exists that were not available to Plaintiff’s Counsel prior to the proceeding on February 28, 2019.” (Motion for Reconsideration, pp. 1:24-2:1.)

A. Legal Standard

Pursuant to Code of Civil Procedure Section 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 (1995) 32 Cal. App. 4th 1494, 1499, 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.” There is a strict requirement of diligence, meaning 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.)

B. Discussion

1. Timeliness

Plaintiff may move for reconsideration within 10 days after service upon the party of written notice of entry. (Code of Civ. Proc., §1008(a).)

According to the eCourt filing system, Plaintiff filed her motion for reconsideration on March 20, 2019 which is more than 10 days after the order dated March 1, 2019. Plaintiff asserts that she filed her motion on March 11, 2019 and the Court received the electronic filing on March 11, 2019, but on March 15, 2019, the filing was rejected because Plaintiff had failed to follow the correct filing procedures – in particular, a CRS receipt was missing from the filing. (Medina Decl., ¶¶ 3-4; Ex. G; Motion for Reconsideration, p. 5, ¶¶ 8-9.)

The rejection of the filing of this motion for reconsideration was not based on the Court’s error, but rather was due to an error by Plaintiff’s counsel. Therefore, the Court could deny this motion because it was not timely filed.

Nonetheless, this motion is unopposed, and the Court believes that counsel deserves the courtesy of a ruling on the merits. Therefore, the Court will reach the merits of Plaintiff’s motion. (See Phelps v. Superior Court (1982) 136 Cal. App. 3d 802, 815 [the 10 day period within which a party can seek reconsideration of an order may not be conclusive, provided that the relief is sought within a reasonable time]; see also Medina Decl., ¶¶ 3-4; Ex. G.)

2. Merits

Plaintiff requests that the Court reconsider its March 1, 2019 order on the grounds that new facts and circumstances exist that were not available to Plaintiff’s Counsel prior to the proceeding on February 28, 2019.” (Motion for Reconsideration, pp. 1:24-2:1.)

First, Plaintiff argues that at the February 28, 2019 “hearing regarding sanctions, several pieces of evidence were offered that were entirely new[:] (1) The court’s judicial assistant, Reyna Navarro, testified in support of the imposition of sanctions[;] (2)Additional testimony that was elicited through the Court’s questioning of Plaintiff’s Counsel; (3) The additional testimony of Zachary Spear, Counsel for Defendant[;] and (4) the Court’s own statements used against Plaintiff’s counsel at the proceeding.” (Id. at p. 7:14-19.) Plaintiff asserts that her “[c]ounsel did not expect to rebut an evidentiary hearing . . . and [b]ecause of this new circumstance—the introduction of new pieces of evidence through an evidentiary hearing—Plaintiff Counsel was not given an opportunity to adequately brief the issue.” (Id. at p. 8:1-3.)

Second, Plaintiff’s counsel argues that the Court’s “verbal notice” [sic] to her on January 25, 2019 differed from the written notices later provided by the Court and “both notices failed to state to Plaintiff’s Counsel that the hearing on February 28, 2019 would be an evidentiary hearing, instead of one concerning Plaintiff’s Counsel’s declaration.” (Id. at p. 10:1-5.) Plaintiff’s counsel asserts that the Court’s verbal notice indicated that the upcoming hearing “concerned the ‘unauthorized recording in chambers’ only[;]” the Court did not state that the hearing “would cover both the alleged open-court and in-chambers recording[;]” and her counsel “was not on notice to argue or submit a declaration, a brief, nor evidence that covered any alleged in-court recording.” (Id. at p. 11:1-6 [referencing Hearing Transcript, dated 01/25/19, at 12:23-24].) Counsel maintains that “[t]he [C]ourt’s notices never stated an evidentiary hearing would occur on February 28, 2019, and the Court’s own statements that only ‘declarations or argument by counsel’ be submitted to the Court, supports Plaintiff Counsel’s content that only declarations and argument would occur at the Order to Show.” (Id. at p. 11:7-10 [citing Hearing Transcript, dated 01/25/19, at 14:5-9.)

The Court’s January 25, 2019 minute order explains that “[t]he Court set an Order to Show Cause why Sanctions should not be imposed for the unauthorized recordings of the hearing and the in-chambers discussion, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17.” (01/25/2019 Minute Order, p. 3.) The Court, in its minute order, also told Plaintiff that if she “wishes to present any written argument or declaration prior to the hearing,” she may do so and defense counsel was also given an opportunity to respond if defense counsel wanted to. (Id.) The Court also told Plaintiff that “Counsel will also be provided an opportunity to orally show cause why sanctions should not be imposed against her at the hearing.” (Id. [emphasis added].)

The Court finds that Plaintiff’s counsel was specifically notified in writing that she would be given an opportunity to present any arguments in writing or any declarations prior to the hearing, as well as given an opportunity at the hearing to orally show cause why sanctions should not be imposed against her. (See Minute Order 01/25/2019, p. 3.) Additionally, the hearing transcript of January 25, 2019 demonstrates that the Court verbally told Plaintiff’s counsel that it “will allow counsel to present whatever information [she] wish[es].” (Motion for Reconsideration, Ex. A, Hearing Transcript, p. 12:24-25.)

It is true that the Court orally stated that it would set an “OSC re: Sanctions for unauthorized recording in chambers.” (Id. at p. 12:23-24.) But it was also clear from the transcript that this hearing would encompass the circumstances surrounding the unauthorized recording, which included any recordings made during the January 25, 2019 proceedings, in or out of chambers. The hearing transcript indicates that the discussion regarding the unauthorized recording included “something entitled Gammalo on [January 25, 2019], a recording of 15 minutes and 40 seconds and above that is something entitled, new recording, of 32 minutes and 20 seconds.” (Id. at p. 10:11-15.)

If there was any ambiguity, the Court’s written minute order of January 25, 2019 – issued after the oral, in-court hearing – clearly indicated that

“The Court set[s] an Order to Show Cause why Sanctions should not be imposed for the unauthorized recordings of the hearing and the in-chambers discussion, in violation of CCP § 177.5, the Los Angeles Superior Court 2019 General Order re Use of Cameras, CRC Rule 2.30(b), CRC Rule 1.150(c) and (f) and/or Local Rule 2.17.” (1/25/2019 Minute Order, p.3.)

In addition to allowing counsel to fully brief the issues presented and file and declarations she deemed appropriate, that same minute order stated that

“Counsel will also be provided an opportunity to orally show cause why sanctions should not be imposed against her at the hearing.” (Id.)

Plaintiff’s counsel was given ample opportunity – both prior to the OSC in written submissions and orally at the OSC – to present her defense to the OSC re sanctions for the “unauthorized recordings of the hearing and the in-chambers discussion.” (See 1/25/2019 Minute Order.)

There are no new facts and circumstances that would warrant reconsideration of the Court’s findings and order. (See Code of Civ. Proc., § 1008(a).) The Court has received no further briefs from Plaintiff since Ms. Kruger’s March 9, 2019 motion for reconsideration.

Plaintiff’s motion for reconsideration is DENIED.