Judge: Curtis A. Kin, Case: 22STCP02545, Date: 2024-04-30 Tentative Ruling

Case Number: 22STCP02545    Hearing Date: April 30, 2024    Dept: 86

MOTION TO VACATE ORDER FOR EXTRINSIC FRAUD AND REQUEST FOR LEAVE TO AMEND AND FILE FIFTH AMENDED PETITION

Date:               4/30/24 (1:30 PM)

Case:                           Marvin Brown v. Los Angeles Department of Water and Power (22STCP02545)

TENTATIVE RULING:

Petitioners Marvin Brown and Maverick Consulting Group, LLC’s Motion to Vacate Order for Extrinsic Fraud and Request for Leave to Amend and File Fifth Amended Petition is DENIED.

Petitioners seek to vacate the March 21, 2023 order sustaining the demurrer to the Second Amended Petition and obtain leave to file a Fifth Amended Petition.

Petitioners contend that the demurrer to the Second Amended Petition was sustained based on extrinsic fraud on the part of respondent Department of Water and Power (“DWP”). To the extent that petitioners contend the ruling on the demurrer to the Second Amended Petition was erroneous in any way, petitioners seek reconsideration of the March 21, 2023 ruling on the demurrer. “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.” (CCP § 1008(a).) When a party requests reconsideration, the deadline set forth in CCP § 1008(a) is jurisdictional. (Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 490; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391 [“[W]e hold that the procedural prerequisites set forth for reconsideration of orders and renewal of motions previously denied are jurisdictional as applied to the actions of parties to civil litigation.”].) 

DWP served notice of the ruling on the demurrer to the Second Amended Petition on March 22, 2023. (Reusch Decl. ¶ 3 & Ex. C.) Accordingly, petitioner had until April 3, 2023 to file a motion for reconsideration. Petitioner filed an initial motion for reconsideration on that date, which was denied on May 4, 2023. The instant motion appears to be a second motion for reconsideration and, as such, has been filed long past the 10-day deadline set forth in CCP § 1008(a). Accordingly, the Court lacks jurisdiction to reconsider the March 21, 2023 ruling.

Even if the Court had jurisdiction to rule on petitioners’ motion, the motion fails on its merits. On March 21, 2023, the demurrer to the Second Amended Petition was sustained with respect to the first cause of action for “CCP 1085, Failure to Follow Tender Process, Rule and Procedures” on the ground that petitioner Marvin Brown lacked standing to sue on behalf of Maverick Consulting Group, Inc. (“Maverick”) and that Pandora Consulting Associates, LLC needed to be named in the petition as an indispensable party. (3/21/23 Minute Order at 4-6.) The Court granted leave to amend to allow the addition of Maverick and Pandora to the first cause of action. (3/21/23 Minute Order at 9.)

Nothing petitioner presented in the instant motion demonstrates that the grounds upon which the demurrer was sustained was based on false information from the Department of Water and Power (“DWP”) or Pandora. While petitioner Brown contends that he was not served with the demurrer, petitioner was served with the demurrer in open court on January 3, 2023, giving petitioner ample time to file an opposition. (3/21/23 Minute Order at 2.) Petitioner contends that the demurrer was not heard within 35 days of service, but petitioner does not cite any statute or authority that necessarily required such a hearing date.

Petitioners’ contention that DWP falsified scoresheets and bid results and sent the purportedly false records to petitioners for them to use in court filings does not change the fact that Maverick was the entity that submitted the bid and that a judgment in favor of Maverick would adversely affect Pandora, the grounds upon which the demurrer to the first cause of action was sustained. (3/21/23 Minute Order at 4-6.) Accordingly, petitioners fail to show that the ruling on March 21, 2023 was the result of any fraud.

With respect to the request for leave to file a Fifth Amended Petition, the motion also fails because petitioners did not comply with Rule of Court 3.1324(a)(2-3) or 3.1324(b).

With respect to DWP and Pandora’s arguments that the operative Fourth Amended Petition was not drawn in conformance with the Court’s March 21, 2023 ruling and/or is otherwise defective, neither DWP nor Pandora have filed a demurrer or motion to strike challenging the pleading. The Court declines to address whether the Fourth Amended Petition is adequately stated.

DWP’s requests for judicial notice are DENIED as “unnecessary to the resolution” of the issues before the Court. (Martinez v. San Diego County Credit Union (2020) 50 Cal.App.5th 1048, 1075.)