Judge: Anne Hwang, Case: 20STCV37477, Date: 2023-08-22 Tentative Ruling

Case Number: 20STCV37477    Hearing Date: November 22, 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.  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

BACKGROUND

On September 30, 2020, Plaintiff Derek Neely (Plaintiff) filed a complaint against City of Los Angeles and Does 1 to 100 after his bicycle allegedly became stuck in a water drain on the street. Plaintiff alleges the injury took place on September 25, 2019. Plaintiff asserts that on January 30, 2023, he discovered that the Los Angeles County Metropolitan Transportation Authority (LACMTA) was responsible for the drain’s condition. Seeking to add LACMTA to the complaint, Plaintiff followed the Government Claim statute by applying for leave to present a late claim with the entity.

After the application was deemed denied after 45 days, on June 22, 2023, Plaintiff filed a Petition with the Court for relief from the Claim statute. On August 22, 2023, the Court denied Plaintiff’s petition on the basis that it lacked jurisdiction since an application to file a late claim must be made within one year after the cause of action accrues. (Gov. Code § 911.4; Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 488 [“When the underlying application to file a late claim is filed more than one year after accrual of the cause of action, the court is without jurisdiction to grant relief under section 946.6.”].) Here, the cause of action accrued on September 30, 2020, and therefore, the application to file a late claim with LACMTA was due by September 30, 2021.

Plaintiff now moves for reconsideration of the Court’s August 22, 2023 denial.

LEGAL STANDARD

Code of Civil Procedure section 1008 provides, in pertinent part:   

“(a) 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 an 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.  

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.   

… 

(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”  

(Code Civ. Proc. section 1008, subds. (a), (b), (e).)   

A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, the burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].)¿¿A 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.)  

If the above statutory requirements are granted, reconsideration should be granted. However, a court is not required to change its decision upon reconsideration. (Corns v. Miller (1986) 181 CA3d 195, 202, 226 CR 247, 251.) Although parties may move for reconsideration only as authorized by Code of Civil Procedure section 1008, the statute “do[es] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel¿(2005) 35 Cal.4th 1094, 1107.)  

DISCUSSION

As an initial matter, the Court notes this motion is timely because it was filed on September 1, 2023 and is based on an order that was made on August 22, 2023. Therefore, the motion was filed within the ten-day period. (Code Civ. Proc. § 1008(a).)

However, first, Plaintiff does not include an affidavit pursuant to section 1008(b) that shows “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.”

Second, Plaintiff argues relief is warranted based on the following: there was no reasonable opportunity to discover the fact that LACMTA was responsible for the drain within the proper timeframe; the relation back doctrine applies since Defendant City of Los Angeles has brought a cross-complaint against LACMTA; and Plaintiff substantially complied with the government claim’s statutes.  However, Plaintiff fails to explain why these arguments were not brought earlier. As stated above, Plaintiff must not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier….” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833.) Therefore, Plaintiff has not met his burden under section 1008.

Moreover, Plaintiff already argued in his previous motion that he exercised diligence in discovering LACMTA’s role in this case and it would be unjust to deny relief. (Motion for Relief, 8.) Therefore, he fails to assert new facts. As for the relation back doctrine, though Plaintiff does not explain why this was not brought up in the original motion, he also fails to cite authority supporting his argument that it applies to government claims. (See Esparza v. Safeway, Inc. (2019) 36 Cal.App.5th 42, 60 [“The relation back doctrine ‘cannot be used to frustrate the intent of the Legislature to require compliance with administrative procedures as a condition to filing an action.’”].) Finally, the cases cited by Plaintiff regarding substantial compliance do not address the one-year limitations period, which is jurisdictional.[1]

Accordingly, the motion is denied.

CONCLUSION AND ORDER

Therefore, the Court DENIES Plaintiff’s Motion for Reconsideration.

Plaintiff to provide notice and file a proof of service of such.