Judge Christopher K. Lui, Case 21STCV36189 2022-12-20 Tentative Ruling

Judge: Christopher K. Lui, Case: 21STCV36189, Date: 2022-12-20 Tentative Ruling

Case Number: 21STCV36189 Hearing Date: December 20, 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 and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.

Plaintiff insurer seeks declaratory relief against insureds that no policy benefits are due based on the insureds breach of obligation to cooperate with the claims adjusting investigation pertaining to an automobile accident.

Plaintiff State Farm Mutual Automobile Insurance Company moves for reconsideration of the November 10, 2022 order granting Defendants Anna Arsenyan and Zhora Sargisyan’s motion to set aside the default and default judgment.

TENTATIVE RULING

Plaintiff State Farm Mutual Automobile Insurance Company’s motion for reconsideration is DENIED.

ANALYSIS

Motion For Reconsideration

Plaintiff argues that the Court should disregard the untimely Opposition. Defendants concede that the Opposition was untimely. In this instance, the Court will, in fact, disregard the untimely Opposition. The reasons why the motion for reconsideration is being denied is apparent to the Court without even considering Defendants’ argument.

Regarding motions for reconsideration, 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).)

Plaintiff has failed to demonstrate new or different law, facts or circumstances as required under CCP § 1008(a) to justify reconsideration. 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.)).

The court properly denied Fettig's motion for reconsideration. Such a motion requires new facts, circumstances, or law that, despite reasonable diligence, could not have accompanied the original motion. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 [189 Cal. Rptr. 3d 824, 352 P.3d 391].) Fettig did not show diligence. She offered a raft of factual material, none of which was recent. Fettig's tardy presentation abused the reconsideration process.

(Fettig v. Hilton Garden Inns Mgmt. LLC (2022) 78 Cal.App.5th 264, 269.)

Plaintiff argues that the Court’s ruling is based on a mistake of law. However, a claim of legal error is not a proper basis for a motion for reconsideration: “We agree a motion for reconsideration, unlike a motion for a new trial, cannot correct judicial error.” (Crotty v. Trader (1996) 50 Cal.App.4th 765, 770.)

Plaintiff argues that the Court erred in granting discretionary relief pursuant to CCP § 473(b) because the Court is not the guardian for incompetent or grossly careless parties. Again, this is a claim for legal error which is not a basis for reconsideration.

Plaintiff argues that Defendants failed to provide State Farm Mutual with proper notice of the hearing on the motion to set aside default. Plaintiff argues that State Farm Mutual never consented to electronic service in this action, and the motion to set aside default was only served by mail. However, CCP § 1010.6(e) requires Plaintiff to accept electronic service of motions because it is a party represented by counsel which has appeared in this action:

(ii) For cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized if . . . the document is served electronically pursuant to the procedures specified in subdivision (e). . . .

. . .

(e)

(1) A party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic service address for counsel being served.

(Civ. Proc. Code § 1010.6(a)(2)(A)(ii) & (e)[bold emphasis added].)

State Farm does not argue that the motion was e-mailed to the incorrect e-mail address. This argument is without merit.

Plaintiff argues that it will be unduly prejudiced if Defendants’ default and default judgment are set aside. Plaintiff argues that Defendants’ unreasonable delay increased the risk of memories of relevant events have faded, relevant documents in the possession of third parties having been lost or destroyed, and percipient witnesses having become unavailable. Plaintiff does not give specific examples, and the delay caused by Defendants failing to answer the complaint was only a little over 2 months, as their defaults were entered 2 months and 16 days after the Complaint was filed. The delay in obtaining entry of the default judgment thereafter on April 6, 2022 is attributable to Plaintiff. Plaintiff argues that it dismissed Doe Defendants and also dismissed Zareh Adjemian prior to applying for default judgment and will have to incur additional costs and attorney’s fees to re-serve this defendant. This does not justify reconsideration of the motion. There is no undue prejudice from Plaintiff having to litigate this case on the merits instead of a quick victory via default judgment and, in any event, that would not justify reconsideration of the motion.

Plaintiff’s request that the Court impose a penalty upon Defendants in connection with granting relief from default judgment, pursuant to CCP § 437(c)(1)(A) is denied. That would have been an argument to be considered on the merits in opposition to the motion for relief, but the Court is not reconsidering that motion on the merits.

Plaintiff’s counsel also claims that the failure to file an opposition was based upon his mistake as he anticipated a paper copy would be forwarded to his office. (Declaration of Richard O. Knapp, ¶ 13.) Plaintiff’s counsel also admits it was a strategic decision not to oppose the motion to set aside default/default judgment. (Knap Decl., ¶ 15.) However, Plaintiff’s implicit reliance upon CCP § 473 to obtain relief is to no avail, as CCP § 1008 governs over § 473. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833

As such, the motion for reconsideration is DENIED.