Judge: Anne Hwang, Case: 19STCV32048, Date: 2023-08-08 Tentative Ruling

Case Number: 19STCV32048    Hearing Date: August 8, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Plaintiff Eluvia Alvarez (“Plaintiff”) has filed a renewed motion to set aside/vacate dismissal of the Court’s order of February 16, 2023, in which the Court dismissed Plaintiff’s complaint for failure to appear at trial. Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) opposes the motion.

ANALYSIS

            While Plaintiff has characterized the instant motion as a “Motion to Set Aside/Vacate Dismissal,” the Court previously issued its decision on this very issue on May 5, 2023 when Plaintiff first attempted to set aside the dismissal. As a result, Plaintiff’s renewed motion to set aside the dismissal is effectively a motion for reconsideration of the Court’s May 5, 2023 Order.

Pursuant to Code of Civil Procedure § 1008, subdivision (a), a motion for reconsideration must be brought “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.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.) 

            The moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) In addition, a party may not seek reconsideration on the ground that the trial court adopted an alleged “different” or “contrary” interpretation of the law than expected. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1949, 1500.)

            In its May 5, 2023 Order, the Court denied the motion because Plaintiff failed to provide sufficient evidentiary support to warrant the requested relief. (May 5, 2023 Minute Order at pg. 4.) Specifically, the Court did not accept the Plaintiff’s counsel’s assertion that the failure to appear stemmed from a calendaring error and miscommunication with the designated trial counsel, David Y. Nakatsu. (Id. at pg. 3-4.) The record as well as Mr. Nakatsu’s concessions at the May 5, 2023 hearing showed that Mr. Nakatsu was present at the Final Status Conference on February 2, 2023, and he specifically acknowledged at the hearing that he was aware of the trial date and time. (Ibid.)

            The motion is untimely and does not provide an explanation for the failure to produce the declaration of Mr. Nakatsu at the time of the original motion.  Not only was this information available to Plaintiff prior to the initial motion, but the Court appears to have already questioned Mr. Nakatsu about the subject of his declaration at the hearing on the initial motion on May 5, 2023.[1]

            Accordingly, the Court denies the motion.

CONCLUSION AND ORDER

            Plaintiff’s renewed motion to set aside/vacate dismissal is denied.

Plaintiff shall give notice of the Court’s ruling and file a proof of service of such.