Judge: Elaine W. Mandel, Case: BC714429, Date: 2022-10-14 Tentative Ruling

Case Number: BC714429    Hearing Date: October 14, 2022    Dept: P

Tentative Ruling
Jones et al. v. Torkzadeh et al., Case No. BC714429
Hearing date October 14, 2022
Plaintiffs’ Motion for Reconsideration

On February 21, 2019, default was entered as to defendant Ghodadra. On August 18, 2021, the Court granted defendant Ghodadra’s motion to vacate the default. On September 20, 2022, over a year later, plaintiffs filed this motion for reconsideration.

A motion for reconsideration must be made “…within 10 days after service upon the party of written notice of entry of the order…” CCP §1008(a). If the procedural limits of Section 1008 are not met, the court lacks jurisdiction to reconsider its prior ruling. See, e.g., Kerns v. CSE Insurance Group (2003) 106 Cal. App. 4th 368, 383.    

Plaintiffs filed and served notice of the order on August 19, 2021, so had until August 30, 2021 to file a motion for reconsideration. They filed this motion on September 20, 2022. The motion is untimely.

In reply, plaintiffs argue defendant agreed to withdraw the untimeliness argument. Hoffman Reply Decl., ¶ 2. Defendant has not filed a notice withdrawing the untimeliness argument, and, even if he did, plaintiffs offer no authority that the court has jurisdiction to ignore Section 1008’s time requirements.

Plaintiffs cited Code of Civil Procedure sections 128, 473, 657 in the Notice of Motion. Plaintiffs failed to comply with California Rules of Court, Rule 3.1113(b) by failing to discuss the statutes cited or how they apply; the Court is not under a duty to try to ascertain how the statutes might apply to the facts of this case. See Quantum Cooking Concepts, Inc. v. LV Associates, Inc.¿(2011) 197 Cal.App.4th 927,934 [“[T]he¿trial¿court¿ha[s] no¿obligation¿to . . . to try to figure out how the law applies to the facts’ of the case]; Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 52 [where appellant's motion was supported by deficient memorandum, trial court was justified in denying the motion on procedural grounds].

Substantively, the motion argues defendant knew about the suit and was properly substituted served. The Court granted defendant’s motion to vacate the default, finding defendant presented evidence that “casts doubt on the process server’s declaration of due diligence,” which “suggests good faith attempts to affect personal service were not made” by Plaintiff. See July 16, 2021, and August 17, 2021 Minute Orders. The Court found “compelling evidence [Defendant] was not served properly [by personal service].” Id.

The motion is untimely. No new facts or law were presented that would allow the court to grant reconsideration even if the motion was timely (or the parties stipulated to waive the jurisdictional time limit). DENIED.