Judge Christopher K. Lui, Case 21STCV17310 2023-03-01 Tentative Ruling

Judge: Christopher K. Lui, Case: 21STCV17310, Date: 2023-03-01 Tentative Ruling

Case Number: 21STCV17310 Hearing Date: March 1, 2023 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 and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

MOVING PARTY: Defendant Juan Herrera by and through is prior counsel, Attorneys Eva B. Kobi and Kobi Law

RESPONDING PARTY(S): Plaintiffs Juan Francisco Alvarado, Juan Magana Alvarado and Martha Alvarado

Until the class action allegations were dismissed, this was an apparent class action brought on behalf of class members who were victims of Defendants’ alleged scheme whereby Defendants would fraudulently dupe victims into unknowingly transferring title to real property under the guise of lowered mortgage payments negotiated on the victims’ behalf. Defendants would then collect “mortgage payments” from the victims for the real property which the victims had unknowingly given to Defendants. Defendants then encumbered the property with (non-existent?) loans by other Defendants, who would not foreclose until after Defendants sold the properties without paying off the loans.

Defendants Sunrise, LLC and Fred Lin filed a Cross-Complaint for judicial foreclosure, breach of contract, indemnity and contribution.

Defendants Nelida Herrera and AMN Properties, LLC filed a Cross-Complaint for judicial foreclosure and breach of promissory note.

Defendant Juan Herrera by and through prior counsel, Attorneys Eva B. Kobi and Kobi Law move for reconsideration of the Court’s November 1, 2022 order granting sanctions against counsel jointly and severally.

TENTATIVE RULING

Defendant Juan Herrera by and through prior counsel, Attorneys Eva B. Kobi and Kobi Law’s motion for reconsideration of the Court’s November 1, 2022 order granting sanctions against counsel jointly and severally is DENIED.

ANALYSIS

Motion For Reconsideration

Discussion

The basis for this motion is that counsel Kobi was substituted out of this matter on August 24, 2022 and was substantially justified in not opposing the motion for sanctions and the motion was moot. Moving party argues that on August 8, 2022, prior counsel filed a motion to be relieved as counsel, but Plaintiff’s counsel continue to email Defendant’s counsel moving papers and discovery in this matter. By August 24, 2022, Kobi obtained, filed and served a substitution of attorney substituting counsel Kobi out of the matter and Defendant Michael Herrerra in pro per.

On November 1, 2022, the Court granted, in part, Plaintiff’s motion for protective order and granted sanctions against Eva Kobi, Esq. and Alejandro Herrera, Esq., jointly and severally, in the sum of $2,000.

However, moving party admits the motion was filed on June 24, 2022, with a November 1, 2022 hearing date. Prior counsel Kobi was served with the motion. That motion sought the appointment of a discovery referee and expressly sought the imposition of sanctions against attorneys Alejandro Herrera and Eva Kobi, jointly and severally, in the amount of $3,065.82. The basis for the motion and request for sanctions was that Defendant’s counsel, including Kobi, engaged in misconduct at depositions of Michelle Budd and Fred Lin by engaging in numerous speaking objections that interfered with the progress of the depositions.

As such, the fact that attorney Kobi had been substituted out as counsel by the time the motion was heard on November 1, 2022 did not automatically excuse her conduct at the deposition. Moreover, in that she had notice of the request for sanctions against her, she had an opportunity to appear and oppose the request notwithstanding that she was no longer counsel of record.

Further, there is no presentation of new or different facts, circumstances or law to justify reconsideration of the November 1, 2022 order. (See Declaration of Eva B. Kobi.)

CCP § 1008(a) 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).)

In connection with a motion for reconsideration, there must be “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 (“With regard to new facts, ‘ “ ‘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.’ ” ’ (Citations omitted.)).

Merely submitting a belated opposition, as attorney Kobi does (Exh. D to Kobi Declaration) is insufficient to justify reconsideration.

As such, the motion for reconsideration is DENIED.