Case Number: 13K04184    Hearing Date: July 21, 2014    Dept: 77

1. Plaintiffs Armen Petrosyan and Irene Petrosyan’s Motion to Compel Defendant’s Deposition is GRANTED. For good cause shown, relief is proper per CCP § 2025.450. Defendant is ordered to appear for deposition on August 29, 2014, 10:00 a.m., at the Law Offices of William F. Salle, or a mutually agreed upon date and time confirmed in writing by Defendant on or before August 29, 2014.

Plaintiffs’ Request for Sanctions is DENIED. CCP §§ 128 and 2030.010 et seq. Per CCP §§ 2023.030 and 2025.450 sanctions shall be imposed against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel, unless the Court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. In this case, the court is not inclined to award sanctions under the facts presented. Defendant contends that she never received the correspondence re: rescheduling her deposition. Accordingly, sanctions are denied.

Moving party to give notice.

2. Plaintiffs Armen Petrosyan and Irene Petrosyan Motion for Terminating Sanctions; Request for Additional Monetary Sanctions is DENIED WITHOUT PREJUDICE. CCP Section 583.410. In light of defendant’s motion for reconsideration as to the ruling on the motion to compel responses to form interrogatories, the Court cannot find that defendant has willfully failed to comply with the court order of January 22, 2014 at this time.

Moving party to give notice.

3. Defendant Madlena Akopyan’s Motion to Dismiss Complaint is DENIED. Insufficient good cause has been presented to warrant the relief requested. CCP §§ 128, 473 and 581 et seq. Defendant’s demurrer to the First Amended Complaint was sustained with 20 days leave to amend on January 22, 2014. The Second Amended Complaint was filed on February 18, 2014. In order to be timely, the Second Amended Complaint had to be filed by February 3, 2014. However, plaintiffs have made a compelling argument that the Second Amended Complaint was not timely filed due to mistake and have made a persuasive argument that defendant has not been prejudiced by the late filing. Accordingly, this motion is denied.

Plaintiffs to give notice.

4. Defendant Madlena Akopyan’s Motion for Reconsideration is DENIED. CCP § 1008.

CCP § 1008(a) allows a motion for reconsideration “based upon new or different facts, circumstances or law,” which are required to be shown by affidavit. The party seeking reconsideration must provide the Court with a satisfactory explanation why the purportedly “new” evidence was not presented at an earlier time. Moreover, the “new” facts must be those not previously available to the moving party at the time of the original motion. In other words, the moving party must demonstrate that he could not, with reasonable diligence, have discovered and presented the evidence at the time of the initial motion. Garcia v. Hejmadi (1997) 58 CA4th 674, 690; see also Baldwin v. Home Sav. of America (1997) 59 Ca4th 1192, 1200. Also, “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.” If the statutory requirements are not met, the motion for reconsideration will be denied. CCP § 1008(b).
Here, this motion is denied. Defendant has not complied with CCP § 1008. First, the declaration filed in support of the motion does not state 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. If the statutory requirements are not met, the motion for reconsideration will be denied. CCP § 1008(b). Second, defendant has presented no grounds for relief that would warrant the court reconsidering the ruling of January 22, 2014. Accordingly, this motion is denied.

Plaintiffs’ Request for Sanctions per CCP § 128.7 is DENIED. Sanctions under CCP § 128.7 are not designed to be punitive in nature but rather to promote compliance with statutory standards of conduct. The offending party can avoid sanctions altogether by withdrawing or correcting the challenged document opposition after receiving notice of the allegedly violative conduct. There are strict procedural requirements that must be met before a motion for CCP § 128.7 sanctions can be heard or granted. A § 128.7 motion for sanctions must be made separately from any other motion and before such a motion can even be filed, the party subject to the sanction must be given 21 days to withdraw or correct the offending document. Goodstone v. Southwest Airlines Co. (1998) 63 Cal.App.4th 406, 418. Here, plaintiffs have not complied with the procedural requirements of CCP § 128.7. As such, plaintiffs’ request for sanctions is denied.

Plaintiffs to give notice.