Judge: Donald F. Gaffney, Case: "Ramirez v. Accel Import Repair, Inc", Date: 2023-08-16 Tentative Ruling
TENTATIVE RULING:
Plaintiff Emilio Ramirez moves for reconsideration of a June 20, 2023, Order denying Plaintiff’s ex parte application requesting trial continuance. For the following reasons, the motion is DENIED.
Plaintiff was self-represented from 07/07/2022 to 04/10/2023, when Plaintiff’s current counsel substituted into the case. (ROA 101, 164.)
On 04/13/2023, the court granted Defendant’s ex parte application for order specially setting Defendant’s MSJ to be heard 07/05/2023. Defendant later decided against filing that motion. (Hernquist Decl. ¶ 11.)
Plaintiff’s counsel believed that on 06/09/2023, the parties had orally agreed to continue the cross-motions for summary judgment from 07/05/2023 to a date sometime in August. (Mogavero Decl. ¶ 4.) The court notes that the record shows that at that time, neither party had filed an MSJ or cross-MSJ.
At some point between 06/09/2023 and 06/14/2023, Plaintiff contacted the court clerk and requested a continuance of the cross-MSJs. (See Mogavero Decl. ¶¶ 6-7, Ex. 1.)
On 06/14/2023, Plaintiff filed an ex parte application to continue the trial date. (Mogavero Decl. ¶ 7.) Defendant opposed, arguing in part that any MSJ by Plaintiff would be untimely. (See ROA 180 at ¶ 9.) The court denied the ex parte on 06/20/2023. (Mogavero Decl. ¶ 8; ROA 185.)
On 06/21/2023, Defendant demanded that Plaintiff withdraw his MSJ and two days after that, Defendant provided notice that Defendant intended to move for sanctions under Section 128.7. (Mogavero Decl. ¶ 9, Ex. 2.) The safe harbor period ended on 07/14/2023.
On 07/17/2023, Defendant filed its Motion for Sanctions. (ROA 233.) The next day, Plaintiff filed the formal “Notice of Withdrawal of Plaintiffs [sic] Motion for Summary Judgment, Replaced by Plaintiff’s Motion for Reconsideration.” (ROA 196.) That notice of withdrawal states that Plaintiff had withdrawn his MSJ weeks earlier, on 06/28/2023, replacing it with the instant Motion for Reconsideration. (See id.) Plaintiff filed another Notice to withdraw his MSJ a week later, on 07/21/2023. (See ROA 223 [07/21/2023 Notice of Withdrawal].)
Here, the moving papers do not state to what judge the original ex parte application was made. (See Mogavero Decl. ¶ 8.) The court could deny the motion on this ground alone. However, the court will exercise its discretion to proceed to the merits.
Code of Civil Procedure section 1008(a) provides in relevant part:
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 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., supra, 135 Cal.App.4th at pp. 212–213; see, e.g., Yolo County Dep’t of Child Support Servs. v. Myers (2016) 248 Cal.App.4th 42, 50 [documents moving party submitted were in existence and available to party at time of original motion and party provided no explanation for failing to produce them earlier]; Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 252 [declaration of moving party’s expert that purported to reach new opinions based on evidence that was available before original motion was not, itself, new evidence].) 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(f).) Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling. (Gilberd, supra, 32 Cal.App.4th at p. 1500.)
Plaintiff contends that new circumstances justify reconsideration of this court’s June 20, 2023, order because after that ruling, Defendant filed a motion for sanctions based on Plaintiff’s filing his motion for summary judgment without the requisite 75 days’ notice. (See Mot. at 3:9-12.)
Plaintiff’s arguments regarding the propriety of Defendant’s sanctions motion are premature and do not affect the court’s analysis on Plaintiff’s earlier request for trial continuance.
In effect, Plaintiff would like the court to reconsider its previous denial so that Plaintiff has the opportunity to move for summary judgment. To the extent Plaintiff wishes for the opportunity to move for summary judgment, that does not constitute a “new circumstance” warranting reconsideration. Plaintiff knew by the time of the ex parte hearing that Defendant did not agree to shortened notice or a trial continuance to provide time for MSJs. (See ROA 180 [Hernquist Decl. in Supp. of Def.’s Opp. to Ex Parte App. for Trial Continuance] at ¶ 9.) Thus, there is no “new circumstance” warranting reconsideration.
Defendant to give notice.