Judge Alison Mackenzie, Case Number: 21STCV22192, Date: 2024-02-29 Tentative Ruling

Judge: Alison Mackenzie, Case: 21STCV22192, Date: 2024-02-29 Tentative Ruling

Case Number: 21STCV22192 Hearing Date: February 29, 2024 Dept: 55

NATURE OF PROCEEDINGS: Motion of Defendants Bag Fund Inc. and Jason Lynn to Reconsider Order Granting Summary Judgment Against Defendants: (1) To Reconsider and Reverse the Basis for its Order Granting Summary Judgment (CCP 1008 and/or CCP 473); and Alternatively (2) to Reconsider and Hold in Abeyance Its Order Granting Summary Judgment Pending Hearing on Motion Defendant is Making With Department 26 Amending the Renewal of Judgment Filed on October 13, 2014 in Case No. 05A01698 (CCP 473).

Background

In this case, plaintiff NAREK AROUTYNYAN (“Plaintiff’) seeks to quiet title and for other relief against Defendants BAG FUND, INC. and JASON LYNN (“Defendants”) in connection with a property located at 8943 Telfair Avenue, Los Angeles, and owned by Plaintiff. In its Cross-Complaint, Defendant Bag Fund, Inc. (“Defendant Bag Fund”) seeks declaratory relief and unjust enrichment against Plaintiff and Cross-Defendant Amwest Funding Corp. (“Cross-Defendant Amwest”), on the grounds that Plaintiff and Cross-Defendant Amwest are not bona fide purchasers of the subject property.

On 6/14/23, the Court granted Cross-Defendant Amwest’s summary judgment motion on Defendant Bag Fund’s Cross-Complaint. On 7/31/23, the Court granted Plaintiff’s motion for summary judgment on the Cross-Complaint (later corrected in a nunc pro tunc order dated 8/9/23).

Defendants now seek reconsideration of the Court’s summary judgment orders. Plaintiff and Cross-Defendant Amwest oppose the motion.

Legal Standard

Code of Civil Procedure Section 1008 provides that a party may move for reconsideration of an order “based upon new or different facts, circumstances, or law.” CCP § 1008(a). The moving party must state such new or different facts, circumstances, or law in an affidavit, see id., “which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence.” Forrest v. Dept. Of Corps. (2007) 150 Cal. App. 4th 183, 202, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP §1008 tightened diligence requirements). Court orders granting or denying requests for reconsideration are reviewed for abuse of discretion. Monroy v. City of L. A. (2008) 164 Cal. App. 4th 248, 265.

Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal. App. 4th 1494, 1500. A new fact that is collateral to the merits, such as counsel’s desire to argue further, does not warrant reconsideration. Id., 32 Cal. App. 4th at 1500; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690. Counsel’s unsworn assertions or arguments are not evidence and will not support a finding of fact. DiCola v. White Bros. Performance Products, Inc. (2008) 158 Cal.App.4th 666, 682; see also Ev. C. §500 (general burden of proof on party asserting claim or defense).

Notice and Timeliness

Motions for reconsideration must be made within 10 days after service of written notice of entry of the order, extended under Code of Civil Procedure Section 1013(c) where service was by mail, fax or overnight delivery. Forrest v. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 203, disapproved on other grounds by Shalant v. Girardi (2011) 51 Cal. 4th 1164, 1172. Most times are extended two days after any type of authorized electronic service. CCP § 1010.6(a)(3)(B).

The motion was timely filed 8/21/23, after electronic service on 8/10/23 of the “Notice of Entry of Order Granting Narek Aroutynyan's Motion for Summary Judgment as to Bag Fund, Inc.'s Cross-Complaint.” That period of time was 11 days, and the maximum was 12.

Analysis

Defendant Bag Fund seeks reconsideration of the Court’s order granting summary judgment, “namely its determination that Defendant BAG FUND “is, in no sense, a judgment creditor or assignee of record of a judgment creditor, for purposes of Code of Civil Procedure Section 680.240.” (Mot., 2:6-10). As the Court concluded in granting summary judgment, Defendant Bag Fund had assigned the judgment at issue in this case to Defendant Lynn in 2014, and thus Defendant Bag Fund was not the judgment creditor and could not renew the judgment.

Defendant Bag Fund claims that the “new fact” undermining this ruling is its motion in another case (Los Angeles Superior Court Case No. 05A01698) to amend the 2006 judgment to correct a clerical error, which Defendant Bag Fund claims will establish that it is the judgment creditor. Multiple reasons exist for finding that there are no new facts warranting reconsideration. First, Defendant Bag Fund’s lack of status as a judgment creditor was just one of many reasons why the Court concluded that the property at issue is not subject to the judgment. Thus, any purported new fact regarding Defendant Bag Fund’s status would not change the ultimate result on summary judgment, thereby indicating that the new fact ultimately is irrelevant. Second, any clerical error in the judgment was an issue Defendant Bag Fund knew, or should have known, prior to the summary judgment motions in this case. The motion in the other case is just a new strategy to address old facts that could have been done sooner. Third, Defendant Bag Fund provided no evidence whatsoever with the motion’s points and authorities in order to support any of the asserted facts. Fourth, the fact of filing a motion is irrelevant, because it remains only speculative whether that will result in adding Bag Fund as a judgment creditor. Fifth, the added fact in the reply-- a judgment was modified on 9/5/14-- predates the subject summary judgment motion and could have been addressed in the initial opposition to that.

Defendant Bag Fund also contends that reconsideration is warranted because it was purportedly wrongfully denied the opportunity to amend the judgment, and thus the Court should grant relief under Code of Civil Procedure Section 473. This argument is unintelligible, but to the extent Defendant Bag Fund argues that some type of judicial error occurred, the Court denies reconsideration on this basis. Issues of judicial error do not support motions for relief under Code of Civil Procedure Section 473, or reconsideration, but instead the prescribed remedy is to file a notice of appeal. Lavrischeff v. Blumer (1978) 77 Cal. App. 3d 406, 411. Moreover, Code of Civil Procedure Section 473 is not grounds for modifying, amending, or revoking an order, and the requirements of Section 1008 must be satisfied. Gilberd, 32 Cal.App.4th at1500-01. And disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd, 32 Cal.App.4th 1494, 1500.

The motion alternatively asks for the Court “to reconsider and hold in abeyance its order granting summary judgment pending hearing on a motion Defendant is Making in Department 26 Amending the Renewal of Judgment filed on October 13, 2014 in Case No. 05A01698 under CCP 473, along with CCP 1008(a).” (Mot., 2:14-18).

As a matter of calendar management, courts have discretion as to whether to continue a motion and allow supplemental filings, or to decide a motion on the documents already filed.
Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal. App. 4th 1007, 1015. Whether to grant or deny a continuance of a proceeding is committed to the sound discretion of trial courts. Miller v. Bank of America, N.A. (2013) 213 Cal.App.4th 1, 12. Further, “judges are duty bound to manage court calendars with a view to minimizing both delay (Gov. Code, § 68607) and unnecessary expense….” Obregon v. Sup. Ct. (1998) 67 Cal. App. 4th 424, 435.

Under the circumstances, the Court finds an absence of good cause to delay the ruling on this motion until the motion in the related case has been decided, because the result cannot change in this case in light of the above analysis, and it is wholly speculative whether the Court in the other case will rule in moving parties’ favor. Additionally, delay already occurred after Defendant Bag Fund’s notice of continuance from 1/3/24.

Conclusion

The motion for reconsideration is denied.