Judge Cynthia A Freeland, Case Number: 37-2021-00019474-CU-OR-NC, Date: 2024-04-05 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2021-00019474-CU-OR-NC, Date: 2024-04-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - April 04, 2024

04/05/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Other Real Property Motion Hearing (Civil) 37-2021-00019474-CU-OR-NC HOLLOWAY VS GORDON HILL ROAD FUND [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Reconsideration, 11/27/2023

Plaintiffs Steve Holloway and Amy Holloway f/k/a Amy Tarmann (collectively, 'Plaintiffs')'s motion for reconsideration is denied.

Initially, the court notes that Defendants Steven Mitchell, Lisa Mitchell, Eduardo Del Rio, Zack Spear, and Ashley Spear (collectively, 'Defendants')'s opposition was untimely. California Code of Civil Procedure ('CCP') § 1005(b) provides, in relevant part, that '[a]ll papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days . . . before the hearing.' See Cal. Code Civ. P. § 1005(b). Defendants did not file and serve their opposition until March 29, 2024 – only five court days before the hearing. Defendants are correct that the court has discretion to consider their untimely opposition. See Correia v. NB Baker Elec., Inc. (2019) 32 Cal. App. 5th 602, 613 ('[R]eviewing courts have long held trial courts are authorized to consider late-filed opposition papers for good cause if there is no undue prejudice to the moving party.'). In this case, the court cannot conclude that Plaintiffs were not prejudiced by Defendants' failure to timely file and serve their opposition given that Plaintiffs, as of the date this ruling was prepared, have not submitted a reply brief.

Consequently, the court will not consider Defendants' opposition.

CCP § 1008(a) provides, in relevant part, that: 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 an 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.

Cal. Code Civ. P. § 1008(a).

A party seeking reconsideration must provide a sufficient explanation for failing to present the information, i.e., the purportedly new facts, circumstances, or law, at the first hearing. See Morris v. AGFA (2006) 144 Cal. App. 4th 1452, 1460; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690. Even if the moving party satisfies its burden, reconsideration does not require that the court change its mind. If CCP § 1008's requirements have been met to the court's satisfaction, but the court is not persuaded that its earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling. See Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1011-1012.

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3058299 CASE NUMBER: CASE TITLE: HOLLOWAY VS GORDON HILL ROAD FUND [IMAGED] 37-2021-00019474-CU-OR-NC The court finds that Plaintiffs have not demonstrated entitlement to the requested relief. To start, the court finds that the motion is procedurally deficient for two reasons. First, CCP § 1008(a) is not the proper procedure for objecting to a statement of decision after a court trial. CCP § 1008(a) applies to a decision by a court on a motion or other 'order' – it does not apply to statements of decision. Second, a motion for reconsideration must be accompanied by an affidavit explaining: (1) what new or different facts, circumstances, or law are claimed to be shown, and (2) why the purportedly new facts, circumstances, or law were not presented at trial. In this case, Plaintiffs claim that Mr. Holloway's declaration satisfies the foregoing requirements by introducing new facts which were not reasonably available at the time of trial. The court respectfully disagrees. Mr. Holloway plainly states at ¶ 1 of his declaration that he is providing a summary of what he and others offered at trial with respect to the subject prescriptive easement. See Holloway Decl., ¶ 1. At no point does Mr. Holloway identify explicitly the purported 'new facts' that were not available at trial. Even if the court were to find that the information contained in Mr. Holloway's declaration was, in fact, new evidence, Mr. Holloway provides no explanation for why the information was not available at the time of trial. The foregoing constitutes grounds to deny the motion.

Plaintiffs cite Le Francois v. Goel (2005) 35 Cal. 4th 1094 ('Le Francois') for the proposition that the court has the inherent authority to reconsider and correct its own decision to achieve substantial justice.

The court agrees that it has the ability to reconsider prior interim orders on its own motion. However, the California Supreme Court explained: [u]nless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion. To be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion - something we think will happen rather rarely - it should inform the parties of this concern, solicit briefing, and hold a hearing. (See Abassi v. Welke, supra, 118 Cal.App.4th at p. 1360, 14 Cal.Rptr.3d 336 ['The trial court invited Welke to file a second summary judgment motion indicating it wanted to reassess its prior ruling.... The parties had an opportunity to brief the issue, and a hearing was held.']; Schachter v. Citigroup, Inc., supra, 126 Cal.App.4th at p. 739, 23 Cal.Rptr.3d 920.) Then, and only then, would a party be expected to respond to another party's suggestion that the court should reconsider a previous ruling.

Le Francois, 35 Cal. 4th at 1108-09.

Plaintiffs have not satisfied CCP § 1008(a)'s requirements. Moreover, Plaintiffs, in essence, ask the court to initiate, formally on its own motion, reconsideration of its November 14, 2023 Decision After Bench Trial (the 'Statement of Decision'). See ROA No. 199. This is not the proper method to initiate reconsideration of the Statement of Decision. Moreover, while the court has authority to sua sponte reconsider its previous interim orders on its own motion, it may only do so after providing the parties notice that it may do so and a reasonable opportunity to litigate the issue. In this case, the court has not indicated that it intends to revisit/reconsider its Statement of Decision.

On the merits, the court finds that Plaintiffs have not demonstrated sufficient grounds warranting reconsideration. Plaintiffs offer various grounds for why the court should reconsider its decision regarding Plaintiffs' prescriptive easement rights over the Dirt Road. However, the court, after carefully considering the parties' respective testimony as well as the evidence admitted at trial, has determined that Plaintiffs failed to meet their burden of demonstrating the existence of a prescriptive easement.

Plaintiffs, by way of the present motion, are not asking the court to reconsider any facts/evidence/law that was not readily available at trial. Instead, Plaintiffs simply disagree with the court's findings. That is not a basis for granting reconsideration.

In light of the foregoing, the court denies Plaintiffs' motion for reconsideration.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, April 5, 2024. If no party appears at the Calendar No.: Event ID: TENTATIVE RULINGS

3058299 CASE NUMBER: CASE TITLE: HOLLOWAY VS GORDON HILL ROAD FUND [IMAGED] 37-2021-00019474-CU-OR-NC hearing, this tentative ruling will become the order of the court as of April 5, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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