Judge: David J. Cowan, Case: 20STCV35503, Date: 2022-09-08 Tentative Ruling

Please notify Dept. 1’s courtroom staff by email (SMCDept1@lacourt.org) or by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion.  If you submit on the tentative, you must immediately notify the other side that you will not appear at the hearing.  If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motion.  Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

 

Case Number: 20STCV35503    Hearing Date: September 8, 2022    Dept: 1

Tentative Ruling

Judge David J. Cowan

Department 1

Hearing Date:                  Thursday, September 8, 2022

Case Name:                     George Alfredo Alva v. Leobardo Zamora, Jr.

Case No.:                         20STCV35503

Motion:                           Reconsideration

Moving Party:                  Defendant Zamora

Opposing Party:               Plaintiff Alva

Notice:                             OK

Ruling:                             The Motion for Reconsideration is DENIED.

Zamora shall give notice.

If the parties do not submit on the tentative, they are strongly encouraged to appear remotely rather than in person.

BACKGROUND

On September 16, 2020, George Alfredo Alva filed a Complaint against Leobardo Zamora, Jr. and Does 1-10 stating causes of action for breach of contract, accounting, and partition by sale of 1438 West 28th Street, Los Angeles, CA 90007 (the “Property”).

On June 9, 2021, Zamora filed an Ex Parte Application for Order to Recuse Judge Green under CCP sec. 170.1.

On June 14, 2021, Judge Green entered an Order Striking Statement of Disqualification and Verified Answer finding that Zamora's Application "demonstrates on its face that no legal grounds for disqualification exist[].".

On June 2, 2022, Zamora filed, in Department 1, a Motion for Reconsideration of Judge Green’s June 14, 2021 Order.

On June 28, 2022, Department 1 denied the Motion for Reconsideration without prejudice, finding Zamora “fail[ed] to present any grounds for intervention by Department 1.”

On July 28, 2022, Zamora filed, in Department 1, a Motion for Reconsideration of Judge Green’s June 14, 2021 Order.

On July 29, 2022, Zamora filed, in Department 1, an Ex Parte Application for Reconsideration of Judge Green’s June 14, 2021 Order.

Later that day, Department 1 denied the Ex Parte Application, finding no grounds for Department to review Judge Green’s Order. Rather, Department 1 concluded the “order striking a statement of disqualification may be reconsidered by the judge who made the order (where available) or reviewed by the Court of Appeal.” The Court stated it would “deny repetitive motions for this relief that fail to present legally permissible grounds for reconsideration.”

On August 8, 2022, Zamora filed an "Objection/Opposition to Minute Order(s) Dated [07.29.2022] & [08.01.2022]."

DISCUSSION

Zamora requests Department 1 review and reconsider Judge Green’s June 14, 2021 Order Striking Statement of Disqualification and Answer to Zamora’s challenge. Zamora argues Judge Green should be disqualified because Judge Green “has personal knowledge of disputed evidentiary facts” due to his involvement in civil cases BC668693 and BC583255, prior litigation between the same parties. Though the Court considered many of these arguments in its June 28, 2022 and July 29, 2022 Orders, Zamora raises new arguments in his August 8, 2022 Objection; the Court addresses these points below.

Review by Department 1—Showing of Inadvertence, Mistake, or Fraud

Under CCP sec. 1008(a), a party seeking reconsideration of an order may “make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” Hence, a “motion to reconsider should be heard by the judge who made the underlying order” whenever that judge is available. (McCartney v. Superior Court (1990) 223 Cal.App.3d 1334, 1340.) The Court has already found that Judge Green is available to hear any Motion for Reconsideration of his June 14, 2021 Order; nothing changes that conclusion.

However, a trial judge may reconsider another trial judge’s ruling in narrow circumstances, such as when the judge who made that ruling is “unavailable,” the “facts have changed,” or the ruling was the result of “inadvertence, mistake, or fraud.” (In re Marriage of Oliverez (2015) 238 Cal.App.4th 1242, 1248-49.) Department 1 previously concluded Zamora had not shown “that Judge Green’s ruling was a product of ‘inadvertence, mistake, or fraud.’” In response, Zamora argues the Court failed to address allegations of fraud described in Section B of the Motion for Reconsideration. (Objection, p. 5.) Zamora also references a Motion to Set Aside Judgment filed January 28, 2022 (and denied by Judge Green on May 23, 2022), asserting it “details the mistakes and fraud with supporting proof, evidence and exhibits.”

However, Zamora’s Motion for Reconsideration merely asserts a May 18, 2017 Stipulation in case BC583255 (Alva v. Zamora, et al.) is “evidence of the secret cooperation between opponents in this lawsuit to make the matter appear as though conclusions of law should be reached before the matter is examined and before there is an adjudication of the issue." (Motion, p. 8.) Zamora fails to explain how the stipulation shows fraud connected to Judge Green’s June 14, 2021 order, which is the subject of this Motion. Similarly, Zamora’s Motion to Set Aside Judgment details (purported) fraud in connection with the June 28, 2017 Judgment in this case—not the June 14, 2021 order at issue. The Court remains unpersuaded that the June 14, 2021 Order is a product of mistake, inadvertence, or fraud by or upon Judge Green.

New Facts or Circumstances Supporting Reconsideration

Zamora argues Department 1 should reconsider the June 14, 2021 Order because of new evidence demonstrating Judge Green is biased or prejudiced. Zamora relies on substantially identical affidavits from Gilberto Ruiz, Emmanuel Zamora, Leobardo Zamora Paz, Ernestina Zamora and Bruce Giron Jr.

The declarants each allege they are “aware of all the facts relevant to case numbers BC583255, B284573, 20STCV35503, and doubt Judge Terry Green's ability to be impartial in the current case mentioned above [20STCV35503] as there is evidence of his prejudice, judicial unethical behavior, and reckless disregard for truth within the evidence presented by the Defendant," Zamora. The Court previously found the declarations submitted by Ernestina Zamora, Leobardo Zamora Paz, and Gilberto Ruiz were “factually devoid.” In response, Zamora argues the affidavits present “new important circumstances,” not facts, and argues there are new affidavits from Emmanuel Zamora and Bruce Giron Jr. (Objection, p. 7.) However, all of these affidavits are empty of facts, consisting essentially of boilerplate allegations of bias.

Zamora argues Judge Green must be disqualified “if a reasonable member of the public at large, aware of all the facts, would fairly entertain doubts concerning the judge’s impartiality.” (Flier v. Superior Court (1994) 23 Cal. App. 4th 165, 170.) There is no indication any of Zamora’s declarants actually have knowledge of the facts in this litigation. None of the declarants discuss the cases at all despite asserting they are “aware of all the facts.” None of the declarants identify any “evidence of [Judge Green’s] prejudice” or any other support for their allegations of prejudice. The procurement of five identical, factually empty declarations simply is not reflective of the views of “reasonable member[s] of the public at large.”

Zamora seeks “confirmation in writing” that Department 1 has “authorized audio recordings of California licensed attorney Mathew Lee May #211811 referenced in the MOTION FOR RECONSIDERATION OF APPLICATION FOR ORDER TO RECUSE JUDGE GREEN sent to Department 1 via U.S. mail as evidence in the form of mp3 files within a compact disc (CD) and Universal Serial Bus (USB) memory drive.” (Objection, p. 7.) Department 1 did not receive the referenced audio recordings.

For the foregoing reasons, the Motion for Reconsideration is DENIED as improperly filed in Department 1. Zamora failed to show the challenged order was the product of “inadvertence, mistake, or fraud” or present any other arguments supporting review in Department 1. (Oliverez, supra, 238 Cal.App.4th at 1248-49.) Therefore, any Motion for Reconsideration of the July 14, 2021 Order must be directed “to the same judge” that made it—Judge Green. (CCP sec. 1008.)

CONCLUSION

The Motion for Reconsideration is DENIED.

Zamora to give notice of this ruling.

If the parties do not submit on the tentative, they are strongly encouraged to appear remotely rather than in person.