Judge: Elaine W. Mandel, Case: 21STCV25467, Date: 2023-05-19 Tentative Ruling
Case Number: 21STCV25467 Hearing Date: April 26, 2024 Dept: P
Tentative
Ruling
Pinto
v. Visconti, Case No. 21STCV25467
Hearing
date April 26, 2024
Defendant
Visconti’s (1) Motion for Terminating Sanctions against Plaintiff; (2) Motion
to Set Aside Order of June 1, 2023; (3) Motion to Set Aside Order of December
4, 2023; and (4) Motion for Reconsideration of the March 5, 2024 Order
Defendant
Visconti filed various motions. On November 15, 2023, she filed a motion for
terminating sanctions against Plaintiff for failure to comply with the Court’s
prior discovery order. On November 20, 2023, Visconti filed a motion to set
aside the order of June 1, 2023 on the ground that the order is void because the
court lacked jurisdiction to consider Pinto’s motion to expunge lis pendens,
and she never had notice of the hearing. On January 3, 2024, Visconti filed a
motion to set aside the order of December 4, 2023 on the ground that the order
is void because the court improperly heard her sanctions and contempt motions
before they were scheduled to be heard. Lastly, on March 14, 2024, Visconti
filed a motion for reconsideration of the order issued on March 5, 2024 on
Pinto’s motion for sanctions against Visconti’s former counsel of record on the
ground that she did not receive notice of the hearing and the matter proceeded
without her presence.
Motions
to Set Aside Orders of June 1, 2023 and December 4, 2023
Upon review
of these filing, the Court finds they are largely duplicative of prior filings
and amount to untimely motions for reconsideration. The motion to set aside the
June 1, 2023 order and motion to set aside the December 4, 2023 order seek
reconsideration. However, a statutory motion for reconsideration under Code of
Civil Procedure §1008 must be served within 10 days of the order or after
receiving notice of the order. Those motions were filed long after the
statutory deadline.
To the
extent that Code of Civil Procedure § 473(d) applies, the Court finds the prior
orders were not void for lack of service nor were they improperly heard. As to
the lack of service argument in connection with the June 1, 2023 order, this is
unavailing because the parties fully briefed the motion to expunge lis pendens.
Visconti is precluded from now claiming she was not served with the underlying
motion.
As to the
motion to set aside the December 4, 2024 order, the contention that the Court
improperly adjudicated Visconti’s motion for contempt and motion for sanction
is not persuasive. Courts have inherent authority to manage their calendars and
control proceedings before them (Rutherford v. Owens-Illinois, Inc. (1997) 16
Cal.4th 953, 967.) This would include shortening time or continuing motions, such
as Visconti’s motions for sanctions and contempt.
Accordingly,
the motions to set aside the June 1, 2023 order and the December 4, 2023 order
are denied.
Motion
for Sanctions
Because the
court previously adjudicated and denied Visconti’s motion for sanctions on
December 4, 2023, the matter has been rendered moot and taken off calendar.
Motion
for Reconsideration
As for
Visconti’s motion for reconsideration of the Court’s March 5, 2024 order, the
Court finds Visconti’s arguments of lack of service and lack of presence at the
hearing are insufficient. With regard to service, the proof of service attached
to the motion for sanctions against Visconti’s former counsel of record
indicates Visconti was served. First, Visconti fails to articulate why her
presence might have resulted in a different outcome, and Visconti fails to
state a reason she was unable to appear. Further, Visconti is not prevented
from appearing remotely from custody at the Century Regional Detention Facility
in Lynwood, California; she has previously appeared from the Detention Facility.
Lack
of Service
As separate
ground for denying Visconti’s various motions, Pinto argues he was never served
with notice of these motions. (See Omnibus Opposition at pg. 2.) In review of
Visconti’s proofs of service (where they were included), they merely state the
papers were served “via US mail on: Eric Khodadian, Esq.” Notably, the proofs
of service omit the address where these motions were mailed to. Accordingly,
the motions are denied for lack of proper service as well.