Judge: Curtis A. Kin, Case: 23STCV23854, Date: 2024-09-24 Tentative Ruling

Case Number: 23STCV23854    Hearing Date: September 24, 2024    Dept: 86

APPLICATIONS (4) FOR RIGHT TO ATTACH ORDERS

Date:               9/24/24 (1:30 PM)

Case:                           Alex Nerush v. Naum Neil Shekhter et al. (23STCV23854)

TENTATIVE RULING:

Plaintiff Alex Nerush’s Applications for Right to Attach Orders Against (1) Naum Neil Shekhter, (2) Margarita V. Shekhter aka Margot Shekhter, (3) 2156 Stratford, LLC, and (4) Naum Neil Shekhter and Margarita Shekhter Trustees of the NMS Family Living Trust in the amount of $59,000,000 are DENIED.

On January 11, 2024, the Court (Hon. James C. Chalfant) denied plaintiff’s applications for right to attach orders against the four defendants listed above in the amount stated above. (1/11/24 Minute Order.) Plaintiff failed to file a supporting memorandum of points and authorities and did not serve and file a notice for each defendant that separately names the defendant. (Ibid.)

Plaintiff seeks the same relief in the instant applications. “The name of a motion is not controlling, and, regardless of the name, a motion asking the trial court to decide the same matter previously ruled on is a motion for reconsideration under Code of Civil Procedure section 1008.” (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.) Because plaintiff seeks the same relief sought in the applications heard on January 11, 2024, the Court deems this motion a motion for reconsideration under CCP § 1008(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.” (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.”].) 

With respect to the ruling on January 11, 2024, plaintiff waived notice. (1/11/24 Minute Order; Code Civ. Proc. § 1019.5 [“When a motion is granted or denied, unless the court otherwise orders, notice of the court’s decision or order shall be given by the prevailing party to all other parties or their attorneys . . . unless notice is waived by all parties in open court and is entered in the minutes”].) Accordingly, plaintiff had 10 days from January 11, 2024, or January 22, 2024 (because January 21, 2024 was a Sunday) to file a motion for reconsideration. The instant applications were untimely filed on May 28, 2024. Accordingly, the Court has no jurisdiction to consider the instant applications under CCP § 1008(a).

CCP § 1008(b) allows a party to file a renewed motion “upon new or different facts, circumstances, or law, in which case it shall be shown 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.” (CCP § 1008(b).) A renewed motion is not subject to a 10-day filing deadline. Even if plaintiff could avail himself of CCP § 1008(b), the supporting affidavit must show “what ‘new or different facts, circumstances, or law are claimed’ [citation] to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833, citing CCP § 1008(b).) Plaintiff fails to provide any explanation, satisfactory or otherwise, as to why the memorandum of points and authorities and notices presented in the instant applications were not presented earlier. Accordingly, the Court does not have jurisdiction under CCP § 1008(b) to address the renewed applications for writs of attachment. (See CCP § 1008(e) [“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final”].) Even if the Court had jurisdiction to hear a renewed motion, whether to grant the motion would still be within the Court’s discretion. (Film Packages, Inc. v. Brandywine Film Productions, Ltd. (1987) 193 Cal.App.3d 824, 830.) Based on plaintiff’s failure to address why the documents presented herein were not presented in connection with the applications heard on January 11, 2024, the Court would decline to exercise such discretion.

For the foregoing reasons, the applications are DENIED.