Judge: Edward B. Moreton, Jr., Case: 23SMCV03296, Date: 2024-02-29 Tentative Ruling

Case Number: 23SMCV03296    Hearing Date: April 5, 2024    Dept: 205

  Superior Court of California

County of Los Angeles

Beverly Hills Courthouse | Department 205

Background

This action arises from a fire that destroyed the inventory of Plaintiff Kaveh Kevin Jebeli (“Plaintiff”) that was being stored at 9041 West Pico Blvd., Los Angeles, California 90035 (the “Property”). Plaintiff entered into a lease with Defendants Jewish Educational Movement (“JEM”) and Hertzel Ilulian (“Illulian”) (collectively “Defendants”) for warehouse/storage space at the Property. Plaintiff alleges that Defendants rented space adjacent to the Property to a CBD oil manufacturer and, shortly after Plaintiff completed the move-in process, the CBD oil caught fire and burned all of Plaintiff’s inventory.

On July 19, 2023, Plaintiff filed a Complaint against Defendants and DOES 1 through 100, inclusive, alleging causes of action for: (1) gross negligence; (2) breach of written contract; and (3) declaratory relief.

Plaintiff filed a proof of service showing that Defendant Illulian was personally served on October 25, 2023 and Defendant JEM was substitute served on November 3, 2023.

On November 28, 2023, default was entered against Defendant Illulian. On December 6, 2023, default was entered against Defendant JEM.

On December 20, 2023, pursuant to Plaintiff’s Request for Dismissal, DOES 1 through 100 were dismissed from this action without prejudice.

On February 6, 2024, Defendants filed a Motion to Set Aside Entry of Default pursuant to CCP § 473(d).

On February 29, 2024, the Court heard oral argument on Defendants’ Motion to Set Aside Entry of Default and took the matter under submission.

On February 29, 2024, at 2:35 P.M., Defendants filed a Notice of Filing of Proposed General Denial in connection with the Motion to Set Aside Entry of Default.

On February 29, 2024, at 3:30 P.M., after an in-chambers review, the Court issued its order denying Defendants’ Motion to Set Aside Entry of Default. The Court noted that “Defendants move pursuant to Code of Civil Procedure Section 473(d) to vacate the defaults entered against them. The motion does not demonstrate that the requirement of Section 473 (d) has been met.” (02/29/24 Minute Order.)

On March 11, 2024, Defendants filed and served the instant Motion for Reconsideration. Defendants seek reconsideration of the Court’s February 29, 2024 order, which was made in the afternoon after an “in-chambers” review.

On March 18, 2024, Plaintiff filed an opposition to Defendants’ Motion for Reconsideration. A reply brief was filed on April 3, 2024. Any reply brief was required to have been filed and served at least five court days prior to the hearing under CCP § 1005(b) and defendants acknowledge that the reply was late. Because it was late it will not be considered by the Court.

Legal Standard/Applicable Law

            Code Civ. Proc. § 1008(a) “requires that a motion for reconsideration be based on new or different facts, circumstances, or law.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4^th 206, 212.) “A party seeking reconsideration must also provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (Ibid.) “A trial court’s ruling on a motion for reconsideration is reviewed under the abuse of discretion standard.”  (Ibid., citation omitted.)

            California Code of Civil Procedure, Section 1008(a) provides that “[w]hen 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 . . . 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, subd. (a).) A trial court has discretion with respect to granting a motion for reconsideration. (New York Times Co. v. Superior Court, supra, 135 Cal.App.4^th 206, 212.)

            “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.4^th 206, 212-13, citation omitted.) A “party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Mink v. Superior Court (1992) 2 Cal.App.4^th 1338, 1342.) “If the trial court believes reconsideration is warranted, it can amend, modify or revoke its previous order.” (Glade v. Glade (1995) 38 Cal.App.4^th 1441, 1457, citation omitted.) In the context of motions for reconsideration, there is “a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4^th 674, 690.)  

Analysis

Counsel for Defendants, James D. White (“White”), provides a declaration in support of the Motion for Reconsideration and states the following: the Court’s tentative decision on the Motion to Set Aside Entry of Default indicated that the motion was procedurally defective pursuant to CCP § 473(b) on the grounds that Defendants failed to file a proposed answer. (White Decl., ¶¶ 2-5.) At the hearing in the morning of February 29, 2024, counsel appeared in person and argued that the applicable subdivision was not CCP § 473(b) as had been cited in the Court’s tentative, but rather CCP § 473(d), in which no such requirement appears, i.e., under subdivision (d) of CCP § 473, there is no requirement that the motion be accompanied by a copy of the proposed answer. (White Decl., ¶¶ 7-8.) To address what the Court asserted as a perceived procedural defect, counsel informed the Court that he could and would easily and promptly prepare and file a proposed answer as a General Denial with Affirmative Defenses. (White Decl., ¶ 9.) The Court took the matter under submission and counsel then promptly prepared, that same day, and served on opposing counsel and filed with the Court, Defendants’ Proposed General Denial with affirmative defenses. (White Decl., ¶¶ 10-12; Exh. A.) The Notice of Filing of Proposed General Denial was electronically received by the Clerk’s office on February 29, 2024 at 2:35 P.M. (White Decl., ¶ 13; Exh. B.)

According to the minute order dated February 29, 2024 at 3:30 P.M., the Court denied Defendants’ motion on the grounds that the requirements of CCP § 473(d) had not been met. (White Decl., ¶¶ 14-15; Exh. C.) Counsel then sets forth attempts to locate the process server on March 7, 2024 concerning the service attempts on Defendants in this action. (White Decl., ¶¶ 18-22.) Counsel states that he is continuing efforts to locate and interview the process server to obtain photo documentation of service attempts as such information is critical to a just determination of Defendants’ Motion to Set Aside Entry of Default. (White Decl., ¶¶ 23-24.) Counsel argues that Plaintiff’s counsel, Ms. Manavi, has in her possession and/or under her control, photo documentation that is critical to a just determination of Defendants’ Motion to Set Aside Entry of Default. (White Decl., ¶ 26.)

The Court finds that Defendants’ have not shown a basis for reconsideration. Counsel does not state what new law, facts, or circumstances exist. The Court also notes that Defendants’ contention that the Court denied their Motion to Set Aside Entry of Default based on the lack of a proposed answer is incorrect. (Motion at p. 8:22-9:13.) The tentative order did not become the final order of the Court. The instant motion is premised on an order that was not, in fact, a final order of this Court. The Court denied Defendants’ Motion to Set Aside Entry of Default based on Defendants’ motion failing to meet the requirements of CCP § 473(d). CCP § 473(d) does not require a proposed answer but instead states that “[t]he court may . . . correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

Further, Defendants have not shown reasonable diligence to warrant reconsideration. While Defendants’ counsel states that Plaintiff’s attorney has photo documentation critical to a determination of the Motion to Set Aside Entry of Default, Defendants have failed to provide any explanation as to why such fact was not presented to the Court at an earlier time. The declaration of counsel in support of the Motion for Reconsideration does not suffice to allow Defendants to meet their burden to warrant reconsideration of this Court’s February 29, 2024 order. In fact, the declaration of counsel does not even mention reasonable diligence.  

Conclusion

Based on the foregoing, the Court DENIES Defendants’ Motion for Reconsideration.   

Dated: April 5, 2024

__________________________________________

Edward B. Moreton, Jr.

Judge of the Superior Court