Judge: Cherol J. Nellon, Case: 23STCV10822, Date: 2023-08-23 Tentative Ruling

Case Number: 23STCV10822    Hearing Date: December 12, 2023    Dept: 14

(1)        Reconsideration

On October 16, 2023, this court sustained the demurrer of Defendant Warren, with 30 days leave to amend.

Plaintiff now moves this court for an order reconsidering that ruling.

Decision

            Plaintiff’s memorandum supporting his motion is 41 pages long, running from page 3 through page 43. That far exceeds the 15-page limt imposed by California Rules of Court Rule 3.1113(d). Therefore, pursuant to California Rules of Court Rules 3.1113(g) and 3.1300(d), the court refuses to consider pages 18-43 of Plaintiff’s moving papers.

            The motion is DENIED.

Governing Standard

Code of Civil Procedure § 1008 states in pertinent part as follows:

“(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 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.

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(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.

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(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.”

“The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457. This requirement also applies to new or different law. Baldwin v. Home Sav. Of America (1997) 59 Cal.App.4th 1192, 1200.  New law is authority arising after the court’s decision, and different law is a principle different than that originally produced. Id. at 1196-97.

Discussion

            Plaintiff’s motion is untimely. The order he asks this court to reconsider was made on October 16, 2023. Plaintiff was in attendance in court when the order was made. As ordered by the court, Defense counsel served notice, via email, on the same date. Therefore, Plaintiff had 10 days plus two court days, or until October 30, 2023, to file this motion. Code of Civil Procedure §§ 1008(a) & 1010.6(a)(3). The motion was not filed until November 6, 2023. That alone is sufficient reason to deny the motion.

            However, even if the motion was timely, Plaintiff has raised no facts or law which could not have been presented to the court at the prior hearing, nor does he raise any facts or law which would cause the court to alter its decision. Plaintiff does no more than simply re-argue the demurrer. That is not sufficient for a motion to reconsider.

Conclusion

            Because the motion is not timely, and because it raises no proper grounds for reconsideration, the motion is DENIED.

(2)        Ex Parte Dismissal

            Defendant Warren now applies to this court for an order dismissing this case with prejudice.

Decision

            The application is GRANTED. The case is DISMISSED. Defendant Warren is to submit a judgment of dismissal within 10 days.

Discussion

            On October 16, 2023, this court sustained the demurrer of Defendant Warren, with 30 days leave to amend. The deadline for amendment passed on November 16, 2023. No amendment has been filed. Pursuant to Code of Civil Procedure § 581(f)(2), Defendant Warren is entitled to an order dismissing the case. And pursuant to California Rules of Court Rule 3.1320(h), they may request that order by ex parte application.