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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

CIVIL LAW & MOTION

Kim Levine et al vs Janet Berschneider et al

Case No: 17CV03278
Hearing Date: Fri Mar 09, 2018 9:30

Nature of Proceedings: Motion for Clarification and/or Reconsideration of Protective Order

Tentative Ruling: The court denies third party witness Michael Steady’s motion for clarification and/or reconsideration of the court’s order denying his motion for a protective order. The court orders that Michael Steady and his attorney, Daniella T. Felix, shall pay a monetary sanction in the amount of $2,500 to John B. Richards.

 

Background: Plaintiff Kim Levine, individually and as guardian ad litem for Santo Massine (collectively “Levine”), brings this action against defendants Janet Berschneider, aka Jenna Berg, in her capacity as trustee of the Berg Family Trust (“Berg”); and Bungalow LLC (Bungalow). Plaintiffs began residing on the lower floor of property at 322 East Arrellaga Street in Santa Barbara on February 14, 2017. Plaintiffs allege that they suffered adverse health symptoms as a result of mold in the premises. The causes of action in the complaint are: 1) negligence (general, failure to disclose latent defect, per se, failure to perform covenant to repair); 2) negligent infliction of emotional distress; 3) breach of implied warranty of habitability (common law); 4) breach of implied warranty of habitability (statutory); 5) private nuisance; 6) breach of contract. Berg and Bungalow filed a cross-complaint against Kim Levine for breach of contract, negligence, and fraud/intentional deceit. CMC is scheduled for May 11, 2018.

On January 19, 2018, the court entered an order after hearing denying third party witness Michael Steady’s motion for a protective order. The court heard the motion for protective order on January 5, 2018. The court posted a tentative ruling granting the motion. After the hearing, however, the court denied it.

Berg and Steady lived together in North Carolina, leaving that residence in 1998. That residence was flooded by a hurricane. At her deposition, Berg discussed mold at the North Carolina residence and said she probably suffered adverse health consequences as a result of that exposure. [Berg Depo. Transcript 75:20-76:14] In a declaration, Steady had stated that Berg did not suffer health problems from mold. After the hearing, the court determined that Levine is entitled to explore the differences in perceptions and memory.

Motion: Third-party witness Michael Steady moves the court to reconsider its order after hearing and to order that there be no deposition or clarify the ruling regarding the scope of the deposition. Levine opposes the motion.

1. Timeliness of Motion: Levine argues that the motion is untimely because Steady did not make it within 10 days. The argument lacks merit.

The party seeking reconsideration must make the motion within 10 days after service upon the party of written notice of entry of the order. CCP § 1008. Any right to do any act within any period or on a date certain after service shall be extended five calendar days, if the service is by mail. CCP § 1013(a). Combining these two provisions, the motion to reconsider must be made within 15 days of mailing the notice of order.

The clerk mailed written notice of the order after hearing on January 22. Steady filed and served the motion on February 6, 15 days later. The motion is timely.

2. Reconsideration/Clarification: A party may apply for reconsideration of an order “based upon new or different facts, circumstances, or law.” CCP § 1008(a). No motion to reconsider an order on a prior motion may be considered unless made according to this section. CCP § 1008(e).

“[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.” Pazderka v. Caballeros Dimas Alang, Inc., 62 Cal.App.4th 658, 670 (1998) [internal quotations and citations omitted]. The party must not only present new evidence “‘but also a satisfactory explanation for the failure to produce that evidence at an earlier time.’” Garcia v. Hejmadi, 58 Cal.App.4th 674, 689 (1997) [citation omitted]. The new evidence “must be such that the moving party could not, with reasonable diligence, have discovered or produced it” before the ruling. New York Times Co. v. Superior Court, 135 Cal.App.4th 206, 213 (2005).

The court concludes that the motion is not based on new evidence that Steady could not, with reasonable diligence, have discovered and produced to the court with the earlier motion.

Steady says that Levine misrepresented Berg’s testimony at her deposition and that Steady has only recently obtained a copy of the deposition transcript. One of the court’s frustrations with the earlier motion and opposition was that no one provided a deposition transcript. Steady’s counsel says she requested a copy from Berg’s counsel on December 26. But Steady relied on behavior at Berg’s deposition in her motion and yet made no effort to obtain a transcript prior to filing that motion on December 11. The court finds that Steady has not given a satisfactory explanation for the failure to produce the deposition evidence at an earlier time.

In any event, the deposition testimony cited above is not inconsistent with what Levine’s counsel told the court on January 5. Berg walked back that testimony, saying she thought her adverse health consequences were related to a chemical to which she was exposed in Mexico. [Berg Depo. 77:3-15] But, when questioned about any adverse health effects she suffered “as a result of being exposed to this chemical used to treat termites in Mexico,” Berg said: “They found nothing significant.” [Berg Depo. 80:13-17] This testimony does not change the underlying factual basis for the court’s ruling.

Steady also says that when his counsel explained the concept of an unlimited deposition to him, “I expressed concern to my attorney about my difficulties with mental stability and sobriety, and my difficult path back to sobriety. I also shared my fears that a stressful or confrontational event, like a contentious deposition or discussion of past event involving Ms. Berg, might cause me to relapse, ruining years of hard—fought sobriety and ending the delicate balance I have achieved for myself over the past three and a half years.” [Steady Dec. ¶7]

Steady brought up this contentious deposition issue in his original motion. The court noted then that no deposition transcript was offered in support of the allegations and, now armed with the deposition transcript, Steady still does not offer any evidentiary support. His own health issues are not something new that he could not have addressed at the time of the earlier motion.

The court will reiterate what it said after the last hearing regarding any contentious behavior at a deposition. If a party is being intimidated or harassed at a deposition, the appropriate action is to terminate the deposition and seek a protective order along with sanctions, including a sanction paid to the court.

Steady also asks the court to clarify its prior order to state that he is a percipient witness only as to Berg’s exposure to mold and any health problems from mold exposure in North Carolina. In its prior ruling, the court did say: “Steady is not a percipient witness to anything related to the current mold but is as to Berg’s exposure to mold and any health problems from mold exposure in North Carolina.” The court was simply reciting what the evidence showed. Levine, on the other hand, can have Steady testify under oath as to his knowledge of the current mold or lack thereof. If he has no such information, that portion of the deposition will be short. The court will not micromanage the deposition.

The court will deny the motion to reconsider or clarify its prior ruling.

3. Monetary Sanction: Levine asks for a monetary sanction in the amount of $4,000 against Steady and his counsel to compensate her for opposing this motion. Levine bases this request on CCP § 2030.030, which provides: “To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process:….” The sanctions include a monetary sanction “ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” CCP § 2030.030(a). It is a misuse of the discovery process to fail to submit to an authorized method of discovery or to unsuccessfully make a motion to limit discovery without substantial justification. CCP § 2023.010(b), (h).

Steady seeks reconsideration of a ruling on his motion for protective order. CCP § 2025.420(h) provides that the court shall impose a monetary sanction against any person or attorney who unsuccessfully makes a motion for a protective order, “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” It follows that CCP § 2025.420(h) authorizes a monetary sanction against a party unsuccessfully moving for reconsideration of a ruling on a motion for protective order without substantial justification.

In its January ruling, the court found that Steady acted with substantial justification in bringing the motion for protective order and the circumstances did not warrant a monetary sanction. The motion to reconsider/clarify is a different matter. Steady had no new information. To the extent he argues the information is new, it is not information he could not have discovered with reasonable diligence and presented at the prior hearing. This motion is not justified and has cost both Levine and the court time and resources.

The court will not impose the requested $4,000 sanction, particularly in light of the meritless argument regarding timeliness of the motion. The court will order that Michael Steady and his attorney, Daniella T. Felix, shall be jointly and severally liable to pay a monetary sanction in the amount of $2,500 to John B. Richards.

4. Order: The court denies third party witness Michael Steady’s motion for clarification and/or reconsideration of the court’s order denying his motion for a protective order. The court orders that Michael Steady and his attorney, Daniella T. Felix, shall pay a monetary sanction in the amount of $2,500 to John B. Richards.

 
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