Judge: Curtis A. Kin, Case: BC567430, Date: 2023-03-09 Tentative Ruling

Case Number: BC567430    Hearing Date: March 9, 2023    Dept: 72

MOTION FOR RECONSIDERATION

Date:               3/9/23 (8:30 AM)

Case:               Giuliana Romano et al. v. Ugo Mamolo et al. (BC567430)

TENATIVE RULING:

Ruggero Terzuolo’s Motion for Reconsideration is DENIED.

On January 27, 2023, the Court denied Ruggero Terzuolo’s ex parte application to enforce settlement agreement. Terzuolo sought an order declaring that ownership of certain Viktor Benes Assets revert back to him (and others), an injunction prohibiting Frank Romano and Frank Romano, Inc. (“FRI”) from using the Viktor Benes Assets (“VB Assets”), and a judgment for all fees, costs, and expenses incurred from use of the Viktor Benes trademarks. The Court found that, although Romano and FRI did not make the payments set forth under the Settlement Agreement, no such payments were due because Romano provided undisputed evidence that the Viktor Benes Assets (including possession of the North Hollywood and Century City locations), for which the payments served as consideration, were never transferred to Romano or FRI.

Terzuolo seeks reconsideration of the January 27, 2023 order denying the ex parte application.

A party seeking reconsideration of a prior ruling must set forth what “new or different facts, circumstances, or law” justify reconsideration of the prior ruling, which is also required to establish the Court’s jurisdiction to reconsider a prior ruling under CCP § 1008(a). (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) A party moving for reconsideration “must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)  

Terzuolo fails to present new or different facts, circumstances, or law warranting reconsideration of the January 27, 2023 order. The amended opposition and evidence that Romano filed on the morning of the hearing of the ex parte application had been served on Terzuolo the day before. Romano’s evidence was thus available and known to Terzuolo before the Court ruled on the ex parte application. Any professed lack of opportunity to review Romano’s evidence was the result of Terzuolo seeking ex parte relief. Moreover, Terzuolo did not ask for a continuance to be able to review the amended opposition and evidence. Simply put, Terzuolo cannot relitigate his entitlement to relief in accordance with the Settlement Agreement and Mutual Release (“Agreement”) and its provisions.  All relevant facts and information concerning his entitlement to the relief he sought thereunder were known and/or available to him when he brought the ex parte application for such. The fact that Terzuolo did not effectively argue then-existing facts is not a ground for reconsideration of the Court’s decision.

The purpose of CCP § 1008 is “to conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over, or move for reconsideration of every adverse order and then appeal the denial of the motion to reconsider.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839-40, internal quotations omitted.) For the reasons stated above, the Court has no jurisdiction to reconsider the January 27, 2023 order denying Terzuolo’s ex parte application.

Alternatively, Terzuolo requests a clarification that Terzuolo, Ugo Mamolo, and VBC continue to own and control the VB Assets. Such a request for a declaration of the parties’ rights would seemingly fall outside the scope of CCP § 664.6, pursuant to which the Court retained limited jurisdiction to enforce the settlement. (See 6/26/17 Minute Order.)  In any event, even if this Court’s retained jurisdiction to enforce the settlement agreement were to encompass the alternative relief Terzuolo now seeks, that relief most certainly falls outside the scope of the vehicle Terzuolo with which he seeks to obtain it, namely, the instant Motion for Reconsideration of the Court’s January 27, 2023 Order denying Terzuolo’s ex parte application.

The motion is DENIED.