Judge: Audra Mori, Case: 21STCV02274, Date: 2022-10-06 Tentative Ruling

Case Number: 21STCV02274    Hearing Date: October 6, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background Facts

Plaintiff Lauren Ruggiero (“Plaintiff”) filed this action against defendant City of Los Angeles (the “City”) and 2003 Bouquet Canyon LLC dba Canyon Apartments, erroneously sued and served as the Canyon Apartments, for damages arising from Plaintiff’s trip and fall on a sidewalk.  Plaintiff alleges that defendants allowed a dangerous condition to exist on the sidewalk caused by overgrown tree roots underneath the sidewalk.  The tree allegedly existed on 2003 Bouquet Canyon LLC’s property.  The complaint asserts claims for negligence and premises liability.

            Defendant 2003 Bouquet Canyon LLC dba Canyon Apartments’ (“Defendant”) motion for summary judgment as to Plaintiff’s complaint was heard and granted on August 23, 2022.  At her deposition, Plaintiff had testified that she stubbed her toe on the slight uplift between two slabs of sidewalk, which was about an inch or maybe an inch and a half in her estimation, and this caused her to fall.  While Plaintiff later argued that the slopes of the sidewalk were the problem, there was no evidence or explanation to show that the slopes actually caused the fall.  The evidence showed that the sidewalk and uplift were in plain sight.  Defendant established that the subject condition that Plaintiff alleged caused her trip and fall constituted a trivial defect, and Plaintiff failed to raise a triable issue of material fact as to the triviality of the defect.  (Min. Order, Aug. 23, 2022.) 

Plaintiff now moves for reconsideration of the order granting Defendant’s motion for summary judgment.  Defendant opposes the motion, and Plaintiff filed a reply.

Plaintiff asserts that new or different material facts have been discovered since the date of the order in that a deposition of Defendant’s person most qualified, Hugo Mejia (“Mejia”), revealed that the subject sidewalk defect was not trivial.  In particular, Plaintiff asserts that Mejia testified that he considered the defect a tripping hazard and made multiple complaints to the City.  Plaintiff contends that despite Plaintiff’s exercise of reasonable diligence to retrieve such evidence, Mejia’s deposition transcript was not made available to the parties until after the August 23, 2022 order was issued.  Plaintiff provides that she took Mejia’s deposition on August 8, 2022, because the City’s counsel was unavailable from July 5 to August 5, 2022.  Further, Plaintiff asserts she had no way of receiving the deposition transcript prior to August 9, 2022, when the opposition to the motion for summary judgment was due. 

In opposition, Defendant contends that plaintiff fails to provide any new or different facts because Mejia’s deposition proceeded prior to Plaintiff filing her opposition.  Defendant asserts that Plaintiff referenced Mejia’s deposition in her opposition to Defendant’s motion for summary judgment, and that Mejia’s testimony that he was not satisfied by previous repairs was considered by the Court.  In addition, Defendant contends that Plaintiff fails to provide any valid reason for not obtaining the deposition testimony earlier, as the City identified Mejia as the person that called in a service request to the City concerning the sidewalk in discovery responses in September 2021, and Defendant filed its motion for summary judgment on March 18, 2022, five months before the hearing on the motion. 

Plaintiff, in reply, contends that when Mejia’s deposition transcript, signed under penalty of perjury, creates a triable issue of material fact as to whether the sidewalk is trivial.  Plaintiff further contends that Defendant itself acknowledges it was unavailable from July 5 to August 5, 2022, which gave Plaintiff’s counsel a limited window to take Mejia’s deposition. 

2. Motion for Reconsideration

CCP §1008 requires the Court to reconsider a prior ruling if it finds there are new or different facts, circumstances, or law than those before the Court at the time of the original ruling.  Once the Court determines the existence of new or different facts, circumstances, of law, it can either modify or affirm its prior decision.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.)

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 150.)  “[A] court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’”  (Id.)  The burden under § 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.”  (New York Times Co. v. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213.)  A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)  A motion for reconsideration was properly denied where based on evidence that could have been presented in connection with the original motion.  (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.)

Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling, as opposed to a change in the law in the interim; that is not a “new” or “different” matter.  (Gilberd v. AC Transit, supra, 32 Cal.App.4th at 1500.)

In this case, Plaintiff moves for reconsideration of the order granting Defendant’s motion for summary judgment based on new or different facts- being Mejia’s deposition transcript.  Consequently, Plaintiff must show that the information is such that Plaintiff could not, with reasonable diligence, have discovered it prior to the hearing on the motion for summary judgment.  (New York Times Co., 135 Cal.App.4th at 212-13.) 

While Plaintiff asserts that co-defendant the City’s counsel was unavailable from July 5, 2022 to August 5, 2022, (Mot. Habbas Decl. Exh. 2), Plaintiff does not dispute Defendant’s assertion that the City served verified discovery responses on September 14, 2021, identifying Mejia as the person who called in a service request to the City regarding the sidewalk.  This was almost one year before the hearing on Defendant’s motion for summary judgment on August 23, 2022.  Further, Defendant served its motion for summary judgment on Plaintiff on March 18, 2022, about five months before the hearing on the motion.  Although Plaintiff contends that the City’s counsel was unavailable from July 5 to August 5, 2022, Plaintiff offers no explanation as to why Mejia’s deposition could not have been taken prior to July 5, 2022.  Plaintiff “easily could have obtained this evidence by deposition or declarations … during discovery.”  (New York Times Co., 135 Cal.App.4th at 212.)[1]  Plaintiff, therefore, fails to show she acted with reasonable diligence. 

Moreover, Plaintiff’s counsel took Mejia’s deposition prior to the opposition to the motion for summary judgment being due and before the August 23, 2022 hearing.  (Mot. Habbas Decl. ¶ 5.)  As Defendant asserts, Plaintiff’s counsel’s declaration submitted with Plaintiff’s opposition to the motion for summary judgment specifically referenced the substance of Mejia’s deposition testimony on August 8, 2022.  (Opp. Exh. B ¶¶ 6-10.)  Plaintiff’s counsel stated that Mejia testified that he made several complaints to the City regarding the sidewalk, that he was unsatisfied with the City’s repairs, and that the City did not make the sidewalk flat.  (Id. at ¶¶ 8-9.)  Therefore, Mejia’s testimony was considered at the time Defendant’s motion for summary judgment was decided.   Further, although Plaintiff contends Mejia’s deposition transcript was not ready prior to the summary judgment hearing, Plaintiff could have, but did not, move for a continuance of the summary judgment motion under CCP § 437c(h).  Plaintiff’s counsel took Mejia’s deposition prior to her opposition being due, and thus, was aware of Mejia’s testimony, but Plaintiff never requested a continuance to allow the deposition transcript to be received.  (See New York Times Co., 135 Cal.App.4th at 215 (These facts support [the] contention that [opposing party] made a strategic decision at the time of the hearing that the deposition transcripts were not necessary to defeat summary judgment.”].) 

            Lastly, to the extent Plaintiff contends that her opposition papers to the motion for summary judgment created triable issues of fact, a contention that the Court incorrectly decided the motion is an improper basis for a motion for reconsideration.  That is not a “new” or “different” matter.  (Gilberd, 32 Cal.App.4th at 1500.)     

Plaintiff fails to show new or different facts, circumstances, or law that could not have been presented, with reasonable diligence, at the August 23, 2022 hearing. 

The motion is denied. 

Plaintiff is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 6^th day of October 2022