Flexpoint, Inc. vs. Felix

App. 4th 1424, 1434 (2011).

Here, Plaintiff does not offer, and the Court does not find, any substantial justification for Plaintiff’s failure to satisfy the clear requirements of California Code of Civil Procedure Section 2016.040 in making this motion. However, neither Plaintiff nor Defendants seek sanctions in this matter. As neither party is on notice of the potential imposition of monetary sanctions, to impose sanctions at this juncture would violate due process. Accordingly, the Court finds that the imposition of sanctions would result in injustice. The Court exercises its discretion not to impose sanctions.

Accordingly, Plaintiff’s Motion to Compel Further Responses to Requests for Production (ROA 178) is DENIED.

Defendant to give notice.

4. 30-2025-01502640- Before the Court are a Motion for Reconsideration brought CU-BT-CJC by movant Brenda Felix (“Movant”) ROA 215. Flexpoint, Inc. vs. Additionally, an Ex-Parte Application is brought by the Felix Movant and nonparty MFOX Law Group, Inc. (collectively “Defendants”) ROA 224.

Movant requests an order, pursuant to California Code of Civil Procedure Sections 1008 and 473, vacating or modifying its July 8, 2026, Order (ROA 205) granting plaintiff and cross defendant Flexpoint Inc.’s Motions to Compel Further Responses to Requests for Production (“MF-PROD”), Special Interrogatories (“MF-SROG”), and Form Interrogatories (“MF-FROG”) (collectively “Motions”), and imposing monetary discovery sanctions upon Movant in the amount of $6,000. ROA 215.

Additionally, “Defendants” seeks an order, pursuant to California Code of Civil Procedure Section 918, temporarily staying enforcement of the Court’s Order (see supra) pending the Court’s determination of Movant’s Motion for Reconsideration, or granting other relief as the Court deems just and appropriate. (ROA 215). ROA 224, p.2.

The Court’s Order renders Defendants’ Ex Parte Application moot. See infra.

Motions for Reconsideration

Under California Code of Civil Procedure Section 1008, a party affected by a court’s order “may, within 10 days after service upon the party of written notice of entry of the order,” move the court to reconsider, modify, or revoke the court’s prior order. Cal. Civ. Proc. Code § 1008(a). The moving party’s application must be accompanied by an affidavit stating “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.” Id.

Importantly, applicants for reconsideration are subject to a strict standard of diligence in ensuring the new or different facts, circumstances, or law were not known or available at the time of the original application. See Garcia v. Hejmadi, 58 Cal. App. 4th 674, 690 (1997). Courts will not consider new or different facts, circumstances, or law presented at application for reconsideration that courts find were available to the applicant at the time of the original application in controversy. See Id. (finding that the applicant failed to meet the requirements of Section 1008 by presenting facts on reconsideration that were available at the time of the original application, without offering any justification for its failure to present them earlier).

Here, Plaintiff served MF-PROD upon Movant on April 15, 2026, by email. ROA 144.

On April 16, 2026, the Court ordered the parties to attend an Informal Discovery Conference (“IDC”) scheduled for May 20, 2026, facilitated by the Court, in order to resolve any pending discovery disputes. ROA 151.

On April 21, 2026, Plaintiff served Movant with MF-SROG and MF-FROG by email. ROAs 161, 165.

On May 19, 2026, the Court continued the IDC and all Motions to July 8, 2026. ROA 190.

On July 8, 2026, the Court noted Movant’s counsel’s failure to appear for IDC as ordered. ROA 205. Consequently, the Court granted Plaintiff’s Motions by default and imposed monetary discovery sanctions upon Movant in the amount of $6,000. Additionally, the Court ordered Movant to serve further, verified responses to Plaintiff’s discovery demands, without objections, by July 22, 2026. Id.

Movant now argues, pursuant to California Code of Civil Procedure Section 1008, that Movant’s supplemental responses, which Movant served upon Plaintiff on July 7, 2026, one (1) day prior to the scheduled IDC and hearing, represent new facts, circumstances, or law that justifies reconsideration under Section 1008. ROA 219, pp. 2-3; see also ROA 219, Exhs. 5-7.

The Court is not convinced.

The Court’s ruling was reached as a result of Movant’s failure to oppose the Motions at hearing, not on the merits of the discovery requests or responses.

Movant’s argument for reconsideration under Section 1008 is, therefore, misplaced. Accordingly, Movant’s Motion for Reconsideration is DENIED. Relief from Judgment

California Code of Civil Procedure Section 473 provides “the court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Cal. Civ. Proc. Code § 473(b). The statute further requires that an application for relief “be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted.” Id. Application for this relief "shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” Id.

California Code of Civil Procedure Section 473 is not

limited to relief from default judgments or mistakes in pleadings. Although the statute appears in the chapter addressing "Mistakes in Pleadings and Amendments," by its plain language, the statute authorizes a court to relieve a party from a "judgment, dismissal, order, or other proceeding" taken against that party . . . ." Cal. Civ. Proc. Code § 473(b) (emphasis added); see also Zellerino v. Brown, 235 Cal. App. 3d 1097, 1106 (1991) (finding that discovery motions are "proceedings" under the meaning of Section 473 and that parties may seek relief under Section 473 from courts' orders issued in discovery proceedings where the relief sought is not provided in the applicable section of the discovery act).

California courts have consistently recognized the distinction between the discretionary and mandatory provisions of Section 473(b). See Minick v. City of Petaluma ("Minick"), 3 Cal. App. 5th 15, 25 (2016).

The discretionary provision applies broadly to "any judgment, dismissal, order, or other proceeding," whereas the mandatory attorney-fault provision is limited to defaults, default judgments, and dismissals. Id. As the court explained in Minick, the Legislature intentionally limited mandatory relief while preserving broad discretionary authority to set aside judgments, orders, and other proceedings entered through mistake, inadvertence, surprise, or excusable neglect. Minick, supra, 3 Cal. App. 5th at p.

26.

However, while relief under the discretionary provision is available only where excusable neglect is found, the mandatory provision is appropriate even in cases of inexcusable neglect. See Rodriguez v. WNT, Inc., 116 Cal. App. 5th 791, 803 (2025).

The mandatory provision has been applied in the discovery context where the resulting order falls within the statute's limited scope. See Aldrich v. San Fernando Valley Lumber Co., 170 Cal. App. 3d 725, 736 (1985) ("an order for dismissal entered for failure to comply with an order compelling answers to interrogatories is the practical equivalent of a default judgment.").

Applying this principle, the Court in Rodriguez held that a dismissal entered as a terminating discovery sanction qualified for mandatory relief under Section 473(b), provided the statutory requirements were satisfied, including the submission of verified discovery responses. Rodriguez, supra, 234 Cal. App. 4th at 729 ("when relief is sought from a terminating sanction imposed for failing to provide discovery responses, the application must be accompanied by verified responses to the discovery in question."). Likewise, in Matera v. McLeod, the court held that a default judgment entered after an answer was struck as a discovery sanction constituted a default judgment eligible for mandatory relief based on an attorney affidavit of fault. Matera v. McLeod 145 Cal. App. 4th 44, 67 (2006).

Discretionary relief under Section 473 is not unlimited, however. Courts have declined to grant discretionary relief where the discovery violations resulted from a party's deliberate or willful misconduct rather than excusable neglect. See Rodriguez, supra, 116 Cal. App. 5th at 803.

Likewise, mandatory relief is unavailable where both the attorney and the client share responsibility for the misconduct that resulted in the default or dismissal. Id.; Lang v. Hochman 77 Cal. App. 4th 1225, 1248 (2000) ("where the parties to a lawsuit have contributed to a default or dismissal, they are not entitled to relief pursuant to subsection (b) of section 473.").

Accordingly, in this Court’s reading, Section 473(b) is not confined to defaults or pleading errors. Its discretionary provision authorizes relief from discovery orders and other discovery-related proceedings when the statutory requirements are met, and no express provision in the relevant section of the discovery act provides for the relief sought, while its mandatory, attorney-fault provision remains limited to defaults, default judgments, dismissals and, in the discovery context, orders imposing terminating sanctions.

As a threshold matter, and pursuant to the foregoing, because the Order of the Court from which Movant seeks

relief did not result in terminating sanctions (ROA 205), the Court finds that Movant is not entitled to mandatory relief.

The party seeking discretionary relief under Section 473 must demonstrate that the mistake, inadvertence, or general neglect was excusable. Zamora v. Clayborn Contracting Grp., 28 Cal. 4th 249, 258 (2002). “In determining whether the attorney’s mistake or inadvertence is excusable, [courts] inquire as to whether a ‘reasonably prudent person under the same circumstances’ might have made the same error. Id. (citations omitted) (emphasis omitted). “Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not . . . excusable. McClain v. Kissler, 39 Cal. App. 5th 399, 414 (2019) (quoting Zamora, supra, 28 Cal. 4th, at 258).

Here, Movant argues that discretionary relief is appropriate on the grounds that Movant’s failure to appear for IDC and oppose Plaintiff’s Motions is attributable to surprise and excusable neglect. ROA 215, p.

3. Movant claims that counsel was unable to appear as ordered due to unexpected fire-related traffic and road safety conditions on July 8, 2026. ROA 219, p.

6.

Having considered Movant’s Declaration in Support of Movant’s Motion for Reconsideration (ROA 219), the Court finds that Movant is entitled to discretionary relief on the grounds that Movant’s failure to appear as ordered in opposition to Plaintiff’s Motion is attributable to surprise and excusable neglect.

Accordingly, the Court issues the following Orders:

Movant’s Motion for Reconsideration Pursuant to California Code of Civil Procedure Section 1008 is DENIED.

Movant’s Motion for Reconsideration [read “Relief”] pursuant to California Code of Civil Procedure Section 473 is GRANTED.

The Court’s July 8, 2026, Order (ROA 205) granting

plaintiff’s Motions to Compel Further Responses to Requests for Production (ROA 146), Special Interrogatories (ROA 171), and Form Interrogatories (ROA 167), ordering Movant to provide further, verified, code compliant responses, and imposing monetary discovery sanctions upon Movant in the amount of $6,000 is VACATED.

Pursuant to the foregoing, the Defendants’ Ex Parte is rendered MOOT.

Plaintiff’s Motions (ROAs, 146, 167, 171) are RESTORED and set for hearing on November 10, 2026, at 1:30 p.m. in this Department for calendaring purposes only.

Parties are ORDERED to appear for an Informal Discovery Conference on November 10, 2026, at 1:30 p.m. in this Department. An updated Joint Letter Brief no longer than four pages total, single-spaced, shall be filed no later than five (5) court days prior to the Informal Discovery Conference. The updated Joint Letter Brief shall be submitted in letter format, single-spaced, with no less than 11-point font, i.e., not in pleading form. In the updated Joint Letter Brief, counsel must attest that counsel met and conferred in person, by phone, or by video conference, and then concisely summarize all issues that counsel were unable to resolve. Personal appearance is mandatory.

Clerk shall give notice.