Judge: Christopher K. Lui, Case: 20STCV47977, Date: 2022-10-14 Tentative Ruling
Case Number: 20STCV47977 Hearing Date: October 14, 2022 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. As required by Rule 3.1308(a)(2), any party seeking oral argument
must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to
appear and argue. Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of
intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.
Plaintiff alleges that she was subjected to sex and disability harassment and discrimination, forcing Plaintiff to take a medical leave, and was further harassed upon her return.
Defendant Rogelio Navarrete filed a Cross-Complaint alleging that Plaintiff’s allegations have caused him emotional distress.
Cross-Complainant Rogelio Navarrete brings a motion for leave to file or reinstate the Cross-Complaint.
TENTATIVE RULING
Cross-Complainant Rogelio Navarrete’s motion for leave to file or reinstate the Cross-Complaint is DENIED.
ANALYSIS
Motion To File or Reinstate Cross-Complaint
On June 22, 2022, following its rulings on the anti-SLAPP motion to the Cross-Complaint and demurrer to the Cross-Complaint, the Court dismissed the Cross-Complaint with prejudice.
Cross-Complainant Rogelio Navarrete brings a motion for leave to file or reinstate the Cross-Complaint. The basis for this motion is that Cross-Complainant’s failure to respond to the demurrer resulting in the Court’s dismissal of the Cross-Complaint was due to excusable neglect. Defendant/Cross-Complainant asserts that he was relocating to his current address and looking for employment in the Los Angeles area. Cross-Complainant argues that the Cross-Complaint is compulsory in nature and it would be fundamentally unfair and deprive Defendant of an opportunity to be heard.
This motion is actually one for reconsideration of the Court’s June 22, 2022 order, and fails to comply with CCP § 1008(a), which provides:
(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.
(Civ. Proc. Code § 1008(a).)
Here, moving party fails to show new or different facts, circumstances or law which justify reconsideration of the June 22, 2022 order. Moving party does not identify what new or different facts he would present in the Opposition that would have affected the Court’s ruling. Also, the fact that a cross-complaint is “compulsory” only means it must be filed in the instant lawsuit and cannot be filed in a later lawsuit. It does not mean that such cross-complaint must remain viable throughout the lawsuit once filed.
Although moving party apparently invokes the excusable neglect standard set forth in CCP § 473(b), CCP § 1008 governs over § 473(b). (See, e.,g., Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [holding that CCP § 1008 governs over CCP § 437 with regard to renewed applications.)
As such, the motion for leave to file a cross-complaint or to reinstate the cross-complaint is DENIED.