Judge: Anne Hwang, Case: 21STCV29482, Date: 2024-03-18 Tentative Ruling

Case Number: 21STCV29482    Hearing Date: March 18, 2024    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 January 24, 2024, this case was called for trial. There were no appearances. As a result, the Court dismissed Plaintiff Arely Santana’s (“Plaintiff”) complaint without prejudice pursuant to Code of Civil Procedure section 581(b)(3). The minute order states that Plaintiff’s counsel appeared in the courtroom at about 9:02 a.m. and was informed of the ruling.

On January 29, 2024, Plaintiff filed the instant motion for reconsideration of the Court’s order under Code of Civil Procedure sections 1008 and 473(b).

LEGAL STANDARD

Reconsideration

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 met, reconsideration should be granted. However, a court is not required to change its decision upon reconsideration. (Corns v. Miller (1986) 181 Cal.App.3d 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.)  

Relief under Section 473(b)

Under Code of Civil Procedure section 473(b), the Court may relieve a party from a dismissal taken against him through his mistake, inadvertence, surprise, or excusable neglect.  This application must be filed no more than six months after entry of the order from which relief is sought, and must contain an affidavit of fault demonstrating the moving party’s mistake, inadvertence, surprise, or excusable neglect.  

A mistake is a basis for relief under section 473 when by reason of the mistake a party failed to make a timely response.¿ Surprise occurs when a party is unexpectedly placed in a position to his injury without any negligence of his own. Excusable neglect is a basis for relief when the party has shown some reasonable excuse for the default.¿ (Credit Managers Association of California v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173; Davis v. Thayer (1980) 113 Cal.App.3d 892, 905.)¿ Under Code of Civil Procedure section 473, the moving party bears the burden of demonstrating an excusable ground, such as fraud or mistake, justifying a court’s vacating a judgment.¿ (Basinger v. Roger & Wells (1990) 220 Cal.App.3d 16, 23–24.)¿¿¿ 

Relief under this section is mandatory when based on an attorney affidavit of fault; otherwise, it is discretionary. (Id.) However mandatory relief is only available when a party fails to oppose a dismissal motion (“which are procedurally equivalent to a default”). (Leader v. Health Industries of America, Inc.¿(2001) 89 Cal.App.4th 603, 620.) The mandatory relief provision does not apply to dismissals for “failure to prosecute [citations omitted], dismissals for failure to serve a complaint within three years [citations omitted], dismissals based on running of the statute of limitations [citations omitted], and voluntary dismissals entered pursuant to settlement [citations omitted].” (Id.)      

DISCUSSION

First, Plaintiff has not shown that section 1008 is applicable here since Plaintiff did not make “an application for an order” to the court that was then denied. (Code Civ. Proc. 1008(a).) To the extent Plaintiff argues that the “application” was asking the Clerk to be heard by the Court, Plaintiff does not state new facts in the declaration. Moreover, although Plaintiff argues that the “new evidence” is that Plaintiff is ready and willing to proceed to trial (Motion at p. 4), the issue was that no party had appeared for trial. All trial counsel were ordered to appear personally in the courtroom “at 8:30 a.m., sharp.” (Minute Order dated January 10, 2024.) Therefore, the motion is denied as to section 1008.

Next, because Plaintiff invoked section 473(b) in its notice of motion and memorandum, the Court will address that argument. No argument has been presented regarding section 473(b). Procedurally, this motion is timely since it was filed within six months after dismissal.

Plaintiff offers the declaration of its counsel, Z. Dean Hakkak, who declares that he arrived at Department 32 at approximately 8:45 a.m., despite that he was ordered to appear at 8:30 a.m. (Hakkak Decl. ¶ 3.) The minute order indicates that counsel appeared in the courtroom at about 9:02 a.m. (Minute Order dated January 24, 2024.) However, Plaintiff’s counsel’s declaration does not indicate that the tardiness was due to mistake, inadvertence, surprise, or excusable neglect. Therefore, relief under section 473(b) is denied.

CONCLUSION AND ORDER

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

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