Judge: Andrew E. Cooper, Case: 23CHCV00861, Date: 2024-11-18 Tentative Ruling

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Case Number: 23CHCV00861    Hearing Date: November 18, 2024    Dept: F51

MOTION FOR RECONSIDERATION

Motion Filed: 8/30/24

MOVING PARTY: Plaintiff Ella Netes, in pro per (“Plaintiff”)

RESPONDING PARTY: Defendant Imad El Asmar, M.D. (“Responding Defendant”)

NOTICE: OK

RELIEF REQUESTED: Reconsideration of the Court’s 8/26/24 Order denying Plaintiff’s motion to set aside her voluntary dismissal of Responding Defendant from the action.

TENTATIVE RULING: The motion is denied.

BACKGROUND 

This is a medical malpractice action in which Plaintiff, who was a patient at Moving Defendant’s medical facility from 12/28/21 to 1/18/22, alleges that she underwent an unnecessary blood transfusion at the Hospital and that some of her medical records from the Hospital, including her discharge summary, do not accurately reflect her medical condition. (TAC ¶¶ 2, 24, 37.)

On 3/27/23, Plaintiff filed the instant action, alleging against Moving Defendant and named physicians the following causes of action: (1) Negligence; (2) Future Health Risks Due to Negligence/Medical Record; and (3) Misadministration. On 5/9/23, Plaintiff filed her first amended complaint (“FAC”), alleging against defendants the following causes of action: (1) Negligence for Heart Injury; (2) Health Risks Due to Negligence/Medical Records; and (3) Misadministration. On 10/5/23, Plaintiff filed her second amended complaint (“SAC”) alleging against defendants the sole cause of action for Malpractice. On 8/30/24, Plaintiff filed her third amended complaint (“TAC”), alleging against Defendants the following causes of action: (1) Breach of Duties; Misrepresentation of Plaintiff’s State of Health; (2) Improper Referrals; and (3) Violation of Privacy Right.

On 10/24/23, “Plaintiff informs the Court that she has spoken to Defense counsel for Imad El Asmar and have come to a settlement.” (10/24/23 Min. Order, p. 1.) On the same date, Plaintiff filed, and the Court entered, a request for dismissal of the entire action against Responding Defendant without prejudice.  On 8/26/24, the Court denied Plaintiff’s motion to set aside the dismissal.

On 8/30/24, Plaintiff filed the instant motion for reconsideration of the Court’s 8/26/24 order. On 10/16/24, Responding Defendant filed his opposition. On 10/23/24, Plaintiff filed her reply.

ANALYSIS

“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. 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.” (Code Civ. Proc. § 1008, subd. (a).)

However, “a motion for reconsideration has a limited role as Code Civ. Proc. § 1008 gives the court no authority when deciding whether to grant a motion to reconsider to ‘reevaluate’ or ‘reanalyze’ facts and authority already presented in the earlier motion.” (Cal. Law & Motion Authorities § 4:13; Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) The moving party bears the burden to not only demonstrate the grounds for reconsideration, but also provide a satisfactory explanation for the failure to present earlier the new circumstances, evidence, or law. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833.)

Here, the Court denied Plaintiff’s motion to set aside the voluntary dismissal of Responding Defendant from the action, finding that “Plaintiff has failed to make a sufficient showing of any ‘mistake, inadvertence, surprise, or excusable neglect’ serving as a basis of relief from her voluntary dismissal of Responding Defendant based on a settlement between the parties.” (8/26/24 Min. Order, p. 6, citing Code Civ. Proc. § 473, subd. (b).) Plaintiff now seeks reconsideration of the Court’s ruling because “after Hearing on 08/16/24 on Motion to Set Aside Dismissal of legal action against Defendant, Plaintiff comprehended Minutes Order, and realized crucial mistake. Plaintiff entered dismissal of entire action against Defendant, instead of dismissing only cause of action pertinent to amendments of records: [Future] Health Risks Due to Negligence/Medical Records. … Plaintiff made mistake not to document and file with Court terms and conditions of tentative agreement with Defendant, before entering dismissal of action on 10/24/23.” (Pl.’s Mot. 4:1–6.)

Responding Defendant argues in opposition that “here, the moving plaintiff fails to provide any ‘new or different facts’ and she moreover fails to demonstrate what any such new or different facts were not presented with the initial Motion.” (Def.’s Opp. 4:22–24.) “The only putative ‘new material’ she presents now is Exhibit A to her September 11, 2024, Declaration. However, this October 23, 2023, e-mail is neither new nor different. To the contrary, it simply reaffirms the fact that she agreed to settle and dismiss the case, in return for a waiver of costs. This was precisely the grounds for Dr. El Asmar’s Opposition, as well as the Court’s Order denying the Motion.” (Id. at 5:27–6:3.) “Moreover, even if the e-mail did in any way support plaintiff’s request that the Court set aside the dismissal, she provides no explanation now why she did not provide it to the Court in support of her failed Motion in the first place.” (Id. at 6:4–6.)

The Court agrees with Responding Defendant that Plaintiff has not met her burden to show any new facts warranting consideration of the Court’s previous ruling. It appears to the Court that Plaintiff contends that she mistakenly dismissed Responding Defendant from the action, but this argument was considered and rejected in the Court’s 8/26/24 ruling. Based on the foregoing, the Court finds that Plaintiff has failed to present “new or different facts, circumstances, or law” warranting reconsideration of the Court’s ruling denying her motion to set aside her voluntary dismissal of Responding Defendant from the instant action. (Code of Civ. Proc. § 1008, subd. (a).) Accordingly, the motion is denied.

CONCLUSION 

The motion is denied.