Judge Alison Mackenzie, Case Number: 21STCV46348, Date: 2024-02-15 Tentative Ruling

Judge: Alison Mackenzie, Case: 21STCV46348, Date: 2024-02-15 Tentative Ruling

Case Number: 21STCV46348 Hearing Date: April 16, 2024 Dept: 55

NATURE OF PROCEEDINGS: Plaintiffs’ Motion for New Trial.

BACKGROUND

Plaintiff SAMI AMMARI filed this case seeking declaratory and injunctive relief against the CITY OF BURBANK (“Defendant”) based on Defendant’s enforcement of Burbank Municipal Code § 6-1-1010 to impound motor vehicles owned by Plaintiff.

On 2/15/24, the Court granted Defendant’s summary judgment motion and denied Plaintiff’s request, filed 2/8/24, to continue the summary judgment hearing so that the Court could first consider Plaintiff’s motion to amend the complaint. Plaintiff now moves for a new trial under Code of Civil Procedure Section 657(1). (Plaintiff’s notice of intention to move for new trial also states that Plaintiff moves for new trial under Code of Civil Procedure Section 657(7), but that code section is not referenced in the memorandum of points and authorities or the reply brief.) Defendant opposes the motion.

LEGAL STANDARD

Code of Civil Procedure § 657 governs motions for new trial and, relevant here, provides that a new trial may be granted for: (1) “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” “The new trial motion may seek reversal of the summary judgment on any available statutory ground for a new trial.” Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal. App. 4th 1171, 1176 (internal quotation and citation omitted).

Code of Civil Procedure § 659 provides that a party moving for a new trial must first file a notice of his intention to move for a new trial “designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both.”

A new trial cannot be granted “unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13) The court must determine that, “after examination of the entire cause,” it is “reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” People v. Watson (1956) 46 Cal.2d 818, 836. As to motions for summary judgment, where the party seeking the new trial knew, or should have known, of preexisting bases at time of the hearing, but failed to show due diligence in producing those, the granting of a new trial would be reversible error. Doe v. United Air Lines, Inc. (2008) 160 Cal. App. 4th 1500, 1509.

ANALYSIS

Plaintiff contends the Court abused its discretion and created irregularity by denying Plaintiff’s requested continuance of the summary judgment hearing and by granting the motion, without allowing leave to amend the complaint via a motion pending for a future hearing date. According to the reply, Plaintiff sought to avoid the risk that the existing pleading did not sufficiently include the separate issue of a warrant.

Courts do not abuse their discretion in granting summary judgment based upon opposing parties’ complete failure to oppose the motion, opposing parties’ failure to support requests for continuances, and moving parties’ satisfaction of their burden of proof. E.g., Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 420. The Court’s ruling entered 2/15/24 already sets forth the reasoning for denying Plaintiff’s continuance request and pleading amendment and granting Defendant’s summary judgment motion.

Plaintiff knew or should have known at the time he was supposed to file the summary judgment opposition that his existing FAC sufficed for purposes of opposing summary judgment. Plaintiff failed to show due diligence by filing an opposition and instead requested a meritless continuance based on an unneeded pleading amendment. Plaintiff’s argument in his reply brief about a separate warrant issue lacks merit. The cited opinion upon which Plaintiff has based his argument treated the warrant issue as a subset of the Fourth Amendment claim. See Coalition on Homelessness v. City and County of San Francisco (2023) 93 Cal.App.5th 928, 935 (“[a]ppellant contends the warrantless tows are unreasonable seizures within the meaning of article I, section 13 of the California Constitution and the Fourth Amendment to the United States Constitution (Fourth Amendment).”). As the Court pointed out in the summary judgment ruling, Plaintiff’s fourth cause of action in the FAC for a Section 1983 claim encompasses the Fourt Amendment, and thus implicitly covers the warrant issue.

Even assuming that Plaintiff needed a pleading amendment, the Court finds that Plaintiff could have and should have filed a timely opposition in addition to the amendment request. As Defendant points out, the Coalition on Homelessness case came down on 7/21/23, six months before Plaintiff’s counsel discovered it the day Plaintiff’s opposition was due. Defendant also cited the case in its summary judgment motion filed on 9/27/23, over four months before Plaintiff’s counsel first read the opinion. Under these circumstances, Plaintiff has not shown due diligence.

Hence, here, any granting of a new trial could be reversible error.

CONCLUSION

The motion is denied.