Judge Cherol J. Nellon, Case 21STCV43650 2023-05-18 Tentative Ruling

Judge: Cherol J. Nellon, Case: 21STCV43650, Date: 2023-05-18 Tentative Ruling

Case Number: 21STCV43650 Hearing Date: May 18, 2023 Dept: 28

Defendant requests the Court “clarify and reconsider its Order” on the April 5, 2023, MSJ.

Plaintiff requests the Court deny the motion and impose sanctions of $5,600.00 on Defendant.

LEGAL STANDARD

CCP §1008 (a) states: “[w]hen 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 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.”

CCP 473(g) states: “Upon the denial of a motion for summary judgment on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion that the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion that indicates that a triable controversy exists. Upon the grant of a motion for summary judgment on the ground that there is no triable issue of material fact, the court shall, by written or oral order, specify the reasons for its determination. The order shall specifically refer to the evidence proffered in support of and, if applicable, in opposition to the motion that indicates no triable issue exists. The court shall also state its reasons for any other determination. The court shall record its determination by court reporter or written order.”

DISCUSSION

To the extent that the motion seeks for the Court to clarify portions of the Motion for Summary Adjudication that were not addressed in the April 5, 2023, ruling, Defendant's argument is not well-taken. In the Court order, the Court noted that there was a dispute as to the weather condition and safety precautions, including warning of potential danger, at and around the time of the incident. This provided a basis for establishing a dispute of material fact as to whether Defendant should have been on constructive notice of the dangerous condition. The Court has complied with this requirement.

Although CCP §1008 is not specifically cited, this is also clearly a motion for reconsideration under a different name. Defendant’s requested relief is “reconsideration of [the Court’s] Order.” Defendant’s motion does not comply with the requirements for a motion for reconsideration. A motion for reconsideration must be filed within 10 days of service of notice of

the ruling. Plaintiff filed a notice of the ruling on April 5, 2023. Defendant did not file this motion until April 17, 2023—2 days after the 10-day cut off. Defendant also did not file an affidavit in support of its motion, as required by CCP § 1008. The Court denies the motion.

The Court awards sanctions against Defendant under CCP § 1008(d), as Defendant’s motion does not comply with the requirements for a motion for reconsideration. Plaintiff requests sanctions totaling $5,600.00, based on 14 hours of attorney’s time at a rate of $400.00 per hour. The Court finds this request to be unreasonable based on the straightforward nature of the work performed. (See In re Marriage of Huntington, supra, 10 Cal.App.4^th at 1524.) Instead, the Court awards Plaintiff 7 hours for attorney’s time at a rate of $400 per hour, plus a $60 filing fee, for a total of $2,860.00.

CONCLUSION

Defendant SCI California Funeral Services, Inc.’s Motion re: Clarification of Order Denying Motion for Summary Judgment is DENIED.

Plaintiff Rosa Maria Pacheco’s Request for Sanction is GRANTED. Defendant and Defendant’s counsel are ordered to pay Plaintiff $2,860.00 in sanctions within 30 days of the hearing on the motion.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.