Judge: Christopher K. Lui, Case: 21STCV06702, Date: 2022-08-10 Tentative Ruling

Case Number: 21STCV06702    Hearing Date: August 10, 2022    Dept: 76

            Plaintiff alleges that Defendants defrauded plaintiff by extracting $246,702.00 from plaintiff as “payments” for installing Solar Systems in Plaintiff’s properties that were either never installed or were inarguably poorly installed and which could never have supported the fake economics presented by Defendants as the sole reason for entering into the transaction to begin with. 

            On May 27, 2022, Defendant’s ex parte application for entry of a judgment of dismissal after expiration of the time to amend following the sustaining of a demurrer was heard in Department 76 because Department 78 was dark. The Court granted the application and ordered the First Amended Complaint dismissed with prejudice. 

            Plaintiff seeks to reinstate the lawsuit by reconsidering and setting aside the order dismissing the case, and filed a notice of intent to move for new trial.

TENTATIVE RULING

            The Court will hear oral argument as to why the Second Amended Complaint was not deemed to have been filed on May 20, 2022 and whether it should now be deemed to have been filed as of May 20, 2022, nunc pro tunc, thereby reinstating this action.

ANALYSIS

Motion For Reconsideration[1]

Defendants’ Evidentiary Objections

            Declaration of Maxim Vaynerov

No. 1: OVERRULED. Goes to weight. 

Defendants’ Request To Strike Untimely Reply 

            Defendants’ request to strike Plaintiff’s untimely reply and to set an OSC re sanctions is DENIED. Based upon the Court’s review of its own records, the motion is likely to be granted, regardless of the arguments set forth in the Reply.

Discussion

            Plaintiff’s motion is brought pursuant to Code of Civil Procedure Section 1008, on the basis that Plaintiff had filed an Opposition to that Motion, which the Court did not receive or consider.  Had the Court done so, the Court would have accurately concluded that it lacked jurisdiction to enter the order of dismissal, and would have denied the ex parte application.  The Court is asked, in light of this new fact, to reconsider its prior Order of Dismissal, to set that Order aside, and to reinstate this case to its active docket.   

            Defendants’ ex parte application filed on May 26, 2022 was granted on May 27, 2022. The opposition to this motion indicates that the Second Amended Complaint was served upon Defendants, but was never filed with the Court. In the Opposition, Defendants admit that “[t]he SAC was due to be filed on May 20, 2022” (Opposition, Page 10:2.) In examining the Court’s docket, it appears that at some time after the Court granted the ex parte motion, the Court’s docket was updated to reflect that the Second Amended Complaint was in fact received on May 20, 2022, but was not marked as filed. It is unclear why it was not deemed to have been filed on May 20, 2022. This constitutes a new or different fact or circumstance. (Civ. Proc. Code, § 1008(a).) 

            In this regard, if the Second Amended Complaint was in fact filed on May 20, 2022, the May 26, 222 ex parte application was granted in error. Thus, the Court will hear oral argument as to why the Second Amended Complaint was not deemed to have been filed on May 20, 2022 and whether it should now be deemed to have been filed as of May 20, 2022, nunc pro tunc, thereby reinstating this action.

            Indeed, Plaintiff has submitted a Notice of Confirmation of Electronic Filing of an Amended Complaint on May 20, 2022. (Declaration of Maxim Vaynerov, ¶ 3; Exh. 4.)