Judge: Deborah C. Servino, Case: 30-2020-01146777, Date: 2022-10-07 Tentative Ruling
Defendant Thomas Bommarito’s motion for reconsideration of the June 17, 2022 demurrer ruling is denied.
The court declines to consider Bommarito’s belatedly filed reply. (Cal. Rules of Court, rule 3.1300(d).)
Generally speaking, a motion for reconsideration made by a party must be based on new or different facts, circumstances, or law than those before the court at the time of the original ruling. (Code Civ. Proc., § 1008, subd. (a).) The motion must also be accompanied by an affidavit from the moving party that states: (1) what application was previously made; (2) when and to what judge; (3) what order was made; and (4) what new or different facts, circumstances or law are claimed to be shown. (Code Civ. Proc., § 1008, subd. (a).) A party seeking reconsideration also 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, 213.)
The burden under section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at pp. 212–213.) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) The court cannot consider matters presented at the earlier hearing. (Code Civ. Proc., § 1008, subd. (f).) Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling. (Gilberd v. AC Transit, supra, 32 Cal.App.4th at p. 1500.)
A demurrer ruling may be the subject of a motion to reconsider under Code of Civil Procedure section 1008. (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 943.) The standards, however, are different because a demurrer is a pleading, rather than an evidentiary, motion.
Conceding that plaintiffs' motion for
reconsideration need not be based upon newly discovered facts, the question remains
whether the “alleged different state of facts” required under subdivision (a)
may be properly alleged in an unverified proposed amended complaint. While
evidentiary facts would ordinarily have to be verified in some manner to be
cognizable in support of a motion, the state of facts determinative on a
demurrer to a complaint need not be. The allegations of a complaint subject
to challenge on demurrer are presumed to be true whether or not the complaint
is verified. (3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 800, p.
2413.) Accordingly, it is sufficient that the plaintiff’s alleged different
facts in their proposed third amended complaint upon which respondent could
determine as a matter of law whether a cause is pleaded.
(Id. at p. 944.)
Here, for his Second Amended Complaint, Plaintiff changed the allegations of how the two male caregivers came into his room to raise the inference that they came in on their own, and for their own purpose, rather than for a caregiving need or upon request. Plaintiff added further allegations of rough handling and verbal abuse by these two caregivers, his own fear, and requests for help. The court determined that the omission of Plaintiff’s prior allegation that the nurse summoned the caregivers to his room was a sham pleading and disregarded the omission of the prior allegation that the nurse summoned the caregivers to Plaintiff’s room. (See 2/4/2022 Minute Order.) In the Third Amended Complaint (“TAC”), Plaintiff provided an explanation of the omission. Specifically, after deposition testimony, it was discovered that the two male caregivers had not been summoned to Plaintiff’s room, but rather came in on their own. (TAC, at ¶ 14.) The court accepted that allegation as true and found it to be sufficient explanation to avoid the sham pleading rule. In the June 17, 2022 ruling, the court overruled portions of Bommarito’s demurrer to Plaintiff Andrew Nelson’s TAC. (6/17/2022 Minute Order.)
Bommarito seeks reconsideration of the June 17, 2022 ruling, attacking the veracity of the allegations in paragraph 14, arguing that Plaintiff had deposition testimony for a year and a half before filing his TAC. To make this argument, Bommarito relies on his January 26, 2021 deposition and the January 25, 2021 deposition of another nurse. (Motion MPA at pp. 7-10.) However, Bommarito already had an opportunity to address paragraph 14, and did. (See Demurrer to TAC, at pp. 11-12.) Bommarito does not explain how such evidence outside the TAC could be considered for the court’s ruling on his demurrer as to the sham pleading doctrine. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission, which Plaintiff did in paragraph 14 of the TAC. (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426.) To the extent that Bommarito is asserting that the allegations in paragraph 14 are untrue and pretextual, that assertion is ineffective for a demurrer. (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 228 [facts alleged in the complaint are treated as true for the purpose of ruling on the demurrer].) Accordingly, the motion for reconsideration is denied.
Within 10 days, Bommarito shall file his answer to the TAC, if he has not already done so. The answer shall be served pursuant to the Code of Civil Procedure.
Plaintiff shall give notice of the ruling.