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Per the Los Angeles court records it is unclear if the tentative ruling below was the final ruling. Check the court file is you have questions about this case.

Case Number: BC608229 Hearing Date: May 22, 2018 Dept: 4

NOTE: Due to an emergency, the court will not be available at the time of the hearing. If either party wishes to present oral argument on this matter, it will be heard on May 24, 2018, at 1:30 p.m.

MOVING PARTY: Plaintiffs Allen Richman and Ann Richman

RESPONDING PARTY: Defendant James George Burnett

Motion for Reconsideration

The court considered the moving, opposition and reply papers.

BACKGROUND

On January 25, 2016, plaintiffs Allen Richman and Ann Richman filed a complaint against defendant James George Burnett for motor vehicle negligence based on an incident that occurred on February 4, 2014.

On May 9, 2017, defendant filed an answer.

On June 5, 2017, pursuant to stipulation and order, the trial date was continued from July 25, 2017 to October 17, 2017.

On September 20, 2017, at an ex parte hearing, the court continued the trial date to February 20, 2018.

On December 29, 2017, the court granted defendant’s motion to continue trial to May 29, 2018.

On January 11, 2018, the court granted defendant’s motions to compel plaintiffs to respond to discovery requests. Plaintiffs were ordered to serve discovery requests within 30 days.

On March 15, 2018, at an ex parte hearing, the court granted defendant’s application for terminating sanctions and dismissed the case with prejudice for plaintiffs’ failure to comply with the January 11, 2018 order. Plaintiffs and their attorneys of record were ordered to pay to defendant $600 within 30 days.

LEGAL STANDARD

Under 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 (1995) 32 Cal. App. 4th 1494, CCP §1008 governs reconsideration of court orders whether initiated by a party or the court itself. “It is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.” Id. at 1499.

CCP §128(a) states, “Every court shall have the power to do all of the following: . . . (8) To amend and control its process and orders so as to make them conform to law and justice. . . .”

DISCUSSION

Under CCP §§1008 and 128, plaintiffs request that the court reconsider its order on defendant’s ex parte application for terminating and monetary sanctions. In the alternative,

plaintiffs request that the court vacate the ex parte order for sanctions, restore the action to the civil calendar, and set a trial date after October 2018.

Plaintiffs contend that they have served all discovery responses required by the court’s January 11, 2018 order, by email and overnight mail on March 14, 2018. Further, plaintiffs argue, a sanction order cannot be granted based on an ex parte application, plaintiffs were deprived of their due process rights, and notice was insufficient for a sanction order. Plaintiffs further explain that the delay in responding to the discovery was not intentional, but rather because of counsel and his wife’s health conditions and an oversight resulting from the abrupt departure of one of plaintiffs’ counsel’s paralegals.

In opposition, defendant argues that the motion is untimely under CCP §1008(a). Further, defendant contends, defense counsel did not “mislead” the court by stating that counsel had not received discovery responses because the defense counsel that appeared at the hearing had not received the email from plaintiffs’ counsel. Rather the email was directed to defense counsel who was in trial at the time. Further, at the hearing, plaintiffs’ counsel did not represent that responses had been served.

The court finds that the imposition of sanctions under CCP §2023.030 requires a noticed motion. The court had granted the ex parte application based on plaintiffs’ failure to comply with the January 11, 2018 discovery order. The terminating sanction and the monetary sanction are discovery sanctions. Because they were awarded on ex parte notice, the sanctions are invalid. Sole Energy Co. v. Hodges (2005) 128 Cal. App. 4th 199, 208. See also Alliance Bank v. Murray (1984) 161 Cal. App. 3d 1. “No matter how clear the violation, sanctions cannot be awarded ex parte. This is true even if the court has warned the violating party (at some earlier hearing) of the specific consequences of its order is violated. A notice motion and hearing are still required before sanctions can be awarded.” Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial, 8:866.

The motion is therefore GRANTED.

The court reconsiders its ruling and DENIES the ex parte application.

The March 14, 2018 order granting the ex parte application and dismissing the case and awarding monetary sanctions is VACATED.

A trial is set for October 17, 2018, at 8:00 a.m. in Dept. 4. A Final Status Conference is set for October 3, 2018, at 10:00 a.m. in Dept. 4.

Plaintiffs are ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: May 22, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court