Judge: Daniel S. Murphy, Case: 20STCV49231, Date: 2023-10-23 Tentative Ruling

Case Number: 20STCV49231    Hearing Date: December 8, 2023    Dept: 32

BACKGROUND

            Plaintiff Jane Doe filed this action against Leonard Dykstra and numerous other defendants on December 24, 2020. On July 3, 2023, the Court dismissed the action pursuant to Code of Civil Procedure section 583.420(a)(1) for failure to prosecute. Plaintiff did not appear for the hearing on the order to show cause.

            On September 27, 2023, Plaintiff filed a motion to set aside the dismissal on the grounds that Plaintiff’s counsel failed to appear at the OSC due to a calendaring error. The Court denied this motion on October 23, 2023, finding that Plaintiff’s failure to prosecute warranted dismissal regardless of counsel’s appearance at the OSC.

            On November 2, 2023, Plaintiff filed the instant motion for reconsideration of the Court’s October 23 ruling.

LEGAL STANDARD

“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.” (Code Civ. Proc., § 1008(a).)

Additionally, “the trial court retains the inherent authority to change its decision at any time prior to the entry of judgment.” (Darling v. Kritt (1999) 75 Cal.App.4th 1148, 1156.) “[S]ection 1008 does not govern the court's ability, on its own motion, to reevaluate its own interim rulings.” (Ibid.) “[T]he only requirement of the court is that it exercise ‘due consideration’ before modifying, amending, or revoking its prior orders.” (Id. at p. 1157.)

DISCUSSION

            Plaintiff moves for reconsideration on the grounds that new facts or circumstances warrant granting her prior motion for relief. Specifically, Plaintiff contends that the staff attorney assigned to her case, Adam Carralejo, abandoned the case by missing an April 2023 OSC, failing to file a proof of service demonstrating service on Defendant Dykstra, and failing to properly update the firm’s lead attorney, Gloria Martinez, before Martinez filed the motion to vacate. Plaintiff claims that this resulted in the motion to vacate being poorly written, leading to its denial. Plaintiff claims that the motion omits facts such as: (i) two of the Defendants were out of state, tolling the statute of limitations; and (ii) a First Amended Complaint had been prepared, removing all defendants except Dykstra and Curtis Olson.

            None of the contentions made in Plaintiff’s motion are supported by evidence. There is still no indication in the record that Plaintiff served any defendant in compliance with Code of Civil Procedure section 583.420. Plaintiff claims to have attached a proof of service as Exhibit A to her declaration, but no declaration or exhibit has been filed. Because Plaintiff failed to prosecute her case within the time limits prescribed by the Code, the Court properly dismissed the case and properly denied Plaintiff’s motion to vacate the dismissal. There are no new facts or circumstances warranting reconsideration.

            It should also be noted that Plaintiff filed this motion as a self-represented plaintiff.  However, the court docket shows that Plaintiff is still represented by counsel.

CONCLUSION

            Plaintiff’s motion for reconsideration is DENIED.