Judge Barbara M. Scheper, Case Number: 22STCV19850, Date: 2024-03-15 Tentative Ruling

Judge: Barbara M. Scheper, Case: 22STCV19850, Date: 2024-03-15 Tentative Ruling

Case Number: 22STCV19850 Hearing Date: March 15, 2024 Dept: 30

Dept. 30

Calendar No.

Manaiza, Jr. vs. Tahiti Marina Apartment & Docks, LLC, et. al., Case No. 22STCV19850

Tentative Ruling re: Plaintiff’s Motion for Reconsideration

Plaintiff Jose Angel Manaiza, Jr. moves for reconsideration of the order sustaining Defendant Tahiti Marina Apartments & Docks LLC’s demurrer to TAC without leave to amend and dismissal of the action with prejudice. The motion is denied.

The moving party must present new facts, circumstances, or law to grant a motion for reconsideration. (See Code Civ. Pro., § 1008, subd. (a); see also Mink v. Super. Ct. (1992) 2 Cal.App.4th 1338, 1342.) “The party seeking reconsideration of an order 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. Pro., § 1008, subd. (a).) Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.) 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, 1500.)

Plaintiff filed the instant action on June 17, 2022. Plaintiff was representing himself at the time. He then filed a First Amended Complaint on March 22, 2023. Counsel Mr. Folke substituted in on behalf of Plaintiff on May 19, 2023. Defendant demurred to the first amended complaint. At the hearing on September 12, 2023, Plaintiff did not appear and had not opposed the demurrer. The demurrer was sustained with ten days leave to amend. Plaintiff, while still represented by Mr. Folke, filed the second amended complaint, in propria persona. On November 22, 2023 Mr. Folke was substituted out and Plaintiff began representing himself again. Defendant filed another demurrer, which Plaintiff opposed. On November 28, 2023, that demurrer was sustained and leave to amend was granted. Plaintiff filed the third amended complaint on December 8, 2023. On December 19, 2023 Counsel Mr. Davis substituted in on behalf of Plaintiff. Thereafter, on January 5, 2024 Defendant filed a demurrer to the third amended complaint. Plaintiff did not oppose the demurrer and on February 8, 2024 the Court sustained the demurrer without leave to amend and dismissed the action with prejudice.

Here, Plaintiff provides the declaration of his counsel of record, Travone Davis, in support of his motion for reconsideration. Davis attests that after the Court’s ruling, he “conducted a comprehensive review and identified new evidence and legal arguments that were not previously considered by the Plaintiff while self-represented.” (Declaration of Travone Davis, ¶ 3.) “The nature of the claims involves the application of maritime law, which presents complexities that require specialized legal expertise. The Plaintiff, while diligent, did not have the legal background to fully appreciate these intricacies. (Id. at ¶ ¶ 4, 7.) According to counsel, “[t]he failure to produce evidence and arguments at an earlier stage was not due to any lack of diligence on the part of the Plaintiff, but rather a consequence of the need for professional legal analysis and strategic guidance, which I now provide.” (Id. at ¶ 8.)

Plaintiff does not state by affidavit “new or different facts, circumstances, or law” to support a motion for reconsideration. (Code Civ. Pro., § 1008, subd. (a).) Rather, Counsel makes general and conclusory statements that he “identified new evidence and legal arguments” after the Court’s ruling. Similarly, counsel merely asserts that maritime law had to be researched but this is hardly new law. Plaintiff also fails to provide “a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade, supra, 38 Cal.App.4th 1441 at 1457.) The information must be such that the moving party¿could not, with reasonable diligence, have discovered or produced it at the hearing. (See New York Times Co. v. Super. Ct. (Wall St. Network, Ltd.)¿(2005) 135 Cal.App.4th 206, 212-213.) While Plaintiff states that the failure to provide evidence and arguments at an earlier time was due to the recent engagement of legal counsel, Plaintiff disregards the fact that Plaintiff was previously represented by counsel before current counsel of record assumed responsibility. And Plaintiff, while represented, twice failed to oppose demurrers, and therefore failed to carry his burden to show that amendment was possible.

This matter was pending for eighteen months. Plaintiff was represented by Mr. Folke for six months and Mr. Davis for two months. Plaintiff was granted leave to amend twice but failed to correct the defects identified in the demurrers. Plaintiff’s motion for reconsideration is without merit and is denied.