Case Name: Olawunmi Hassan v. Great Mall, et al.
Case No.: 2018-CV-324469

Motion for Reconsideration by Plaintiff Olawunmi Hassan

Factual and Procedural Background

This is a personal injury case. On August 14, 2017, plaintiff Olawunmi Hassan (“Plaintiff”) (self-represented) visited and purchased eye glasses from Vision Insight at the Great Mall of Milpitas. Shortly after his visit, Plaintiff slipped and fell on the ground as a result of fruits and debris on the floor causing injuries to his back, knees, and right shoulder.

On April 3, 2018, Plaintiff filed a First Amended Complaint against defendants alleging a single claim for negligence.

On October 17, 2018, defendant Milpitas Mills Limited Partnership (“Defendant”) filed a motion to compel responses to form interrogatories (“FI”), special interrogatories (“SI”), and request for production of documents (“RPD”) because Plaintiff did not serve timely discovery answers and thus all objections were waived. (See Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Defendant also requested an award of monetary sanctions in conjunction with the motion. The Court granted the motion in its entirety and imposed monetary sanctions in the amount of $1,185 payable within 20 calendar days of the Order.

On April 11, 2019, the Court granted Plaintiff’s motion to file a Second Amended Complaint (“SAC”) for negligence.

Motion for Reconsideration

Currently before the Court is Plaintiff’s motion to reconsider the Court’s ruling on the motion to compel responses to FI, SI, and RPD and to impose monetary sanctions. (See Code Civ. Proc., § 1008.) Defendant filed written opposition. Plaintiff filed reply papers. No trial date has been set.

Legal Standard

Code of Civil Procedure section 1008 represents the Legislature’s attempt to regulate what the Supreme Court has referred to as “repetitive motions.” (See Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 885 [disapproved on other grounds in Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830].) Motions for reconsideration are regulated by section 1008, subdivision (a), which requires that any such motion be (1) filed within 10 days after service upon the party of written notice of entry of the order of which reconsideration is sought, (2) supported by new or additional facts, circumstances or law, and (3) accompanied by an affidavit detailing the circumstances of the first motion and the respects in which the new motion differs from it. (Ibid.)

Timeliness of the Motion

Code of Civil Procedure section 1008, subdivision (a) requires a reconsideration motion be filed within 10 days of service of “notice of entry” of the order sought to be reconsidered. The discovery motion was heard on January 31, 2019. Following oral argument, the Court adopted its tentative ruling which became the final order on the motion. Plaintiff thereafter filed his motion for reconsideration on February 8, 2019. Since the Court’s file does not contain a “notice of entry” of the order, the 10 day time limit is not applicable. (See Novak v. Fay (2015) 236 Cal.App.4th 329, 335-336 [10 day time limit did not apply where no notice of entry of order served].) The Court therefore concludes the motion for reconsideration was timely filed.

Supporting Declaration

A motion for reconsideration must be accompanied by a declaration from the moving party stating: (1) what application was made previously; (2) when and what judge the application was made; (3) what order or decisions were made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc., § 1008, subd. (a); see Branner v. Regents of Univ. of Calif. (2009) 175 Cal.App.4th 1043, 1048 [motion filed and served without supporting affidavit was invalid].)

In support of the motion, Plaintiff includes his declaration addressing the motion to compel discovery responses heard and granted by Judge Arand on January 31, 2019. (See Plaintiff’s Declaration at ¶ 2.) The declaration however is procedurally defective as it fails to include any new or different facts, circumstances, or law to support a motion for reconsideration. The Court now considers the balance of Plaintiff’s motion to determine whether it is supported by any new or different facts or law to support reconsideration.

New and Different Facts or Law

Code of Civil Procedure “[s]ection 1008 allows the trial court to reconsider and modify, amend or revoke its prior order when the moving party shows a different state of facts exists.” (Mink v. Super. Ct. (1992) 2 Cal.App.4th 1338, 1342.) “An order denying a motion for reconsideration is interpreted as a determination that the application does not meet the requirements of section 1008. If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling.” (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)

“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. In short, the moving party’s burden is the same as that of a party seeking a new trial on the ground of ‘newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.’ [Citation.]” (Blue Mountain Development Co. v. Carville (1982) 132 Cal.App.3d 1005, 1013 [disapproved on other grounds in Passavanti v. Williams (1990) 225 Cal.App.3d 1602]; see also Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200 [reconsideration on basis of “different law” requires same showing of diligence as required for reconsideration on basis of “different facts”].)

Here, Plaintiff raises a total nine different arguments in support of his motion for reconsideration. (See Memo of P’s & A’s at pp. 3-6.) Plaintiff argues, among other things, that he had a pending motion for leave to file a SAC, he was not late in responding to discovery, that he did not receive any letter or phone call from defense counsel regarding his discovery responses, and that he was not given any chance to amend his answers. Despite these arguments, Plaintiff fails to assert any new and different facts or law to support a motion for reconsideration. Also, Plaintiff’s self-representation status does not excuse him from complying with the statutory requirements for reconsideration under section 1008. (Kabbe v. Miller (1990) 226 Cal.App.3d 93, 98; see Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].) Nor does the fact that Plaintiff served discovery responses on February 19, 2019, as ordered by the Court, provide a proper basis for reconsideration. (See Plaintiff’s Reply Decl. at ¶ 2.)

The Court therefore declines to reconsider its prior ruling in granting the motion to compel discovery responses and impose monetary sanctions against Plaintiff.

Accordingly, the motion for reconsideration is DENIED.

Court’s Inherent Authority

In addition, the statute governing reconsideration generally allows courts to act sua sponte to enter a different order “at any time” when there has been a change in the law. (Code Civ. Proc., § 1008, subd. (c).) Moreover, even in the absence of a change in the law, the court has inherent power to reconsider its own interim orders at any time on its own motion (sua sponte). (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 (Le Francois); Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73.) As the Le Francois court stated:

“We cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling…We agree that it should not matter whether the ‘judge has an unprovoked flash of understanding in the middle of the night’ or acts in response to a party’s suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief.”

(Id. at p. 1108.)
Here, Plaintiff has not presented any arguments that would require the Court, on its own authority, to reconsider its prior ruling. The Court therefore declines to exercise its inherent authority to reconsider its order on the discovery motion.

Request for Terminating, Evidence, or Issue Sanctions

In opposition, Defendant requests that terminating, or alternatively, evidence and issue sanctions be imposed against Plaintiff for discovery abuse. (See OPP at pp. 6-7.) This is not the appropriate procedure by which to request discovery sanctions. Code of Civil Procedure section 2023.040 provides that a request for discovery sanctions shall be made by noticed motion satisfying the particular requirements of that section, including that said motion be supported by a memorandum of points and authorities. However, particularly as it appears that discovery responses have been served, the Court is not convinced that non-monetary sanctions would be warranted, and in any event, meet and confer would be required.

Accordingly, the request for terminating, evidence or issue sanctions is DENIED WITHOUT PREJUDICE subject to a noticed motion satisfying the requirements of section 2023.040.

The Court will prepare the Order.