Judge: Gail Killefer, Case: 20STCV38707, Date: 2022-09-21 Tentative Ruling
Case Number: 20STCV38707 Hearing Date: September 21, 2022 Dept: 37
HEARING DATE: September 21, 2022
CASE NUMBER: 20STCV38707
CASE NAME: Jeremy Rosenberg, et al. v.
Autumn Lorenz, et al
TRIAL
DATE: August 1,
2023
MOTION: Cross-Defendants/Plaintiffs’ Motion
for Reconsideration of August 8, 2022 Order
MOVING PARTIES: Plaintiffs/Cross-Defendants, Jeremy
Rosenberg and Joanna Cohen
OPPOSING PARTY: Defendant/Cross-Complainant, Autumn
Lorenz
PROOF OF SERVICE: OK
OPPOSITION: September 8, 2022
REPLY: September 14,
2022
Tentative: Cross-Defendants’ motion for
reconsideration is denied. Cross-Complainant is to give notice.
This action arises out of Plaintiffs Joanna Cohen (“Cohen”)
and Jeremy Rosenberg’s (“Rosenberg”) lease of real property located at 7601
Midfield Avenue, Los Angeles, California (the “Midfield Property”). Plaintiffs allege that Defendant Autumn Lorenz
(“Lorenz”) is the owner of the Midfield Property, Defendant Nina Plotner
(“Plotner”) is its manager, and Defendant Bob Herrera (“Herrera”) is a real
estate broker for the Midfield Property through his firm, Defendant Pres. Now,
Inc. dba Professional Real Estate Services. (“Management Firm”).
Plaintiffs allege that each of them qualify as having a
disability under the Fair Employment and Housing Act. According to Plaintiffs,
they began a romantic relationship on or about May 30, 2017, and thereafter
decided to adopt a mini pig as an emotional support animal. On or about
September 12, 2019, Plaintiffs signed a lease with Lorenz for the Midfield
Property, which allegedly included a Pet Addendum permitting Plaintiffs to keep
their mini pig for an additional security deposit. After Plaintiffs moved into
the Midfield Property, Plaintiffs allege that they repeatedly received improper
demands regarding their mini pig and to vacate the property, despite the lease
and pet addendum allegedly permitting the mini pig. Plaintiffs further allege
that they provided documentation in response to these demands that their mini
pig was an emotional support animal which posed no health and safety risk but
that despite this, Defendants continued to unreasonably withhold consent for them
to keep their mini pig. Finally, Plaintiffs allege that Defendants posted a
three-day Notice to Perform Conditions and Covenants or Quit (the “Notice”) on
December 8, 2019 but that the Notice was wrongful as it failed to make any
specific demands about covenants to fulfill and was based on fabricated
evidence about Plaintiffs’ wrongdoing.
Plaintiffs’ Complaint alleges ten causes of action: (1)
housing discrimination (Government Code § 12955); (2) Unruh Civil Rights Act
(Civil Code §§ 51, 52); (3) Bane Act (Civil Code § 52.1); (4) retaliation
(Government Code § 12855.7); (5) conspiracy; (6) breach of implied covenant of
quiet enjoyment against Lorenz; (7) breach of contract against Lorenz; (8)
breach of implied covenant of good faith and fair dealing against Lorenz; (9)
intentional interference with economic relations against Plotner, Herrera and
Management Firm; and (10) intentional infliction of emotional distress.
On March 26, 2021, Plaintiffs filed their First Amended
Complaint (“FAC”). The FAC removes the
third and fifth causes of action. On June 4, 2021, Plaintiffs filed their
operative Second Amended Complaint (“SAC”), adding an eleventh cause of action
for fraud against Lorenz.
On July 2, 2021, Plotner, Herrera, and Management Firm
(“Management Defendants”) filed their Answer to the SAC, including a 26th
Affirmative Defense under the Agent Immunity Rule. Management Defendants allege
immunity from liability, contending they were acting as property managers on
behalf of and under the authorization of Lorenz.
On April 22, 2021, Lorenz filed a Cross-Complaint against
Rosenberg and Cohen (“Cross-Defendants”), alleging that their actions in
keeping a mini pig at the Midfield Property constituted a breach of the lease.
Lorenz’s cross-complaint alleges five causes of action: (1) breach of contract;
(2) negligence; (3) fraud; (4) negligent infliction of emotional distress; and
(5) intentional infliction of emotional distress.
On April 23, 2021, Plotner, Herrera and Management Firm
(“Cross-Complainants”) filed their Cross-Complaint against Lorenz. The
Cross-Complaint alleges that Cross-Complainants are entitled to indemnity and
contribution from Lorenz based on the Property Management Agreement between
them. Cross-Complainants allege the following causes of action: (1) express
indemnity; (2) total equitable indemnity; (3) partial equitable indemnity; (4)
contribution; and (5) declaratory relief.
On December 7, 2021, Lorenz filed the Second Amended
Cross-Complaint (“SACC”). The SACC
alleged only the first four causes of action.
On March 30, 2022, Lorenz filed the operative Third Amended
Cross-Complaint (“TACC”) again alleging the first four causes of action. On May
26, 2022, the court sustained Cross-Defendants’ demurrer as to the third cause
of action of the TACC.
On August 8, 2022, the court denied Plaintiffs’ motion for
summary judgment as to the TACC, finding several triable issues of material
fact.
Cross-Defendants/Plaintiffs now move for reconsideration of
the court’s August 8, 2022 order denying Cross-Defendants’ motion for summary
judgment. Cross-Complaint/Defendant Lorenz opposes the motion.
Discussion
I.
Timeliness
CCP
§ 1008 allows a party to move for reconsideration of an order within 10 days
after service upon the party of written notice of entry of the order, based on
new or different facts, circumstances, or law.
On
August 8, 2022, the court’s Deputy Clerk gave notice of the court’s August 8,
2022 ruling regarding their motion for summary judgment by mail. Cross-Defendants’
motion was filed on August 16, 2022, exactly eight days later. Thus, Cross-Defendants’
motion is timely.
I.
Analysis
CCP
§ 1008 requires the party moving for reconsideration to “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.” However, a party moving for reconsideration under CCP § 1008
must demonstrate that “new or different facts” in support of the motion could
not have been discovered or produced with “reasonable diligence” at the time of
the original hearing. (New York Times Co. v. Superior Court
(2005) 135 Cal.App.4th 206, 212-13 (“the information must be such that the
moving party could not, with reasonable diligence, have discovered or produced
it at the [original hearing]”).
Cross-Defendants contend that new and different
facts have been uncovered which purportedly show Cross-Complainant’s claim to
be unsubstantiated and that, as such, the court should reconsider its August 8,
2022 ruling. (Motion, 1-7.) Cross-Defendants also contend that a renewed motion
for summary judgment is applicable here, but Cross-Defendants fail to file the
relevant briefings to this court for such a renewed motion. (Motion, 2-3.) As
such, the court continues with the motion for reconsideration.
Cross-Defendants also mischaracterize this
court’s earlier holding, contending “[t]he only evidence that the Court
referenced in the ruling was Cross-Complainant’s declaration filed with her
opposition papers that added some specificity to her allegations, but
nonetheless constituted unsupported claims and made no reference to any prior
document production.” (Motion, 3.) As the August 8, 2022 ruling makes clear,
the court not only references Lorenz’s treating physician’s notes, but also
explains “triable issues of material fact remain as to the closeness of
connection between Cross-Defendants’ conduct and Lorenz’s injuries, the extent
of Cross-Defendants’ responsibility for Lorenz’s physical injuries, and the
degree of certainty that Lorenz suffered her physical injuries as a result of
Cross-Defendants’ conduct. The court is not deciding this issue on the
merits but simply finding triable issues of material fact.” (Emphasis added.)
(August 8, 2022, Ruling, 15-18.)
Further, while Cross-Defendants reference
allegations by Cross-Complaint of physical injuries to her pregnancy,
Cross-Defendants themselves admit that such new evidence was discovered before
the original August 8, 2022 hearing. (New York Times Co. v. Superior Court
(2005) 135 Cal.App.4th 206, 212-13.) (Motion, 4.) Cross-Defendants
expressly admit the “new and different facts were discovered in the second
session of Cross-Complainant’s deposition, which took place on July 15, 2022,
after Cross-Defendants’ Summary Judgment was filed May 20, 2022, with discovery
open and a September 20, 2022 trial date on the horizon….” (Id.)
However, the second deposition of Lorenz took place one month before the
“original hearing,” and as such, they could have been produced with
“reasonable diligence” before the August 8, 2022 hearing. Further, the parties
could have provided further briefing on the matter and asked for a continued
motion to provide such evidence. But Cross-Defendants seek another bite of the
apple after merely disagreeing with the court’s August 8, 2022 ruling, which
does not support a granting of reconsideration.
As this court made clear in the August
8, 2022 ruling, and as it reiterates it now, this court’s role is not weigh the
evidence or try these issues on the merits, but rather to find if triable
issues of material fact exist.
In opposition, Lorenz contends
“Cross-Defendants have thus been responsible for an unusual and wasteful amount
of resources of the court and other parties. It appears that they fail to
appreciate what is a triable issue of fact.” (Opposition, 2-5.) The court
agrees.
Lorenz continues Cross-Defendants “easily could
have had this testimony in discovery,” and the testimony at issue “does not
constitute new or different facts within the meaning of section 1008. This is
not the type of new information that would justify reconsideration.” (Opp., 3.)
As the court noted above, Lorenz also contends that Cross-Defendants could have
moved for a continuance but instead, use “new evidence as a fallback assertion
to seek reconsideration.” (Id.) Lorenz further explains that all records
and purported new evidence was produced or filed with motion papers well before
the August 8, 2022 hearing. (Opp., 3-4.)
Lastly, Lorenz explains “[t]he court has no power to weigh
inferences deduced from the evidence. The submission of evidence from which
conflicting inferences may be drawn, or is otherwise equivocal, is insufficient
to meet the movant’s burden of proof on a motion for summary judgment.” (Opp.,
4-5; citing Anderson v. Metalclad Insulation Corp., 72 Cal.App,4th 284,
297 (1999).)
In reply, Cross-Defendants reiterate their
misinterpretations of this court’s holding, and repeat the same claims as their
Motion. (Reply, 2-6.) Cross-Defendants incorrectly contend:
“Cross-Complainant essentially argues that her admissions
made in deposition testimony and in documents taken later and produced later in
time from the summary judgment motion’s filing are not new. This argument defies
logic. Cross-Defendants could not possibly provide evidence to the Court on
summary judgment that they did not have at the time of filing.
Cross-Complainant’s conclusive admissions made in deposition and found in
documents are new to the Court on this Motion.” (Reply, 4.)
As Lorenz has pointed out and this court has further
elaborated, the referenced evidence was produced or filed before the original
hearing and, with “reasonable diligence,” the evidence could have been
introduced at the original hearing in support of their motion. (New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206,
212-13.)
For these reasons, the court does not reconsider its August 8,
2022 ruling. Thus, Cross-Defendants’ motion for reconsideration is denied.
Having denied Cross-Defendants’ motion on this basis, the court does not reach
the remainder of the parties’ arguments.
Conclusion
Cross-Defendants’ motion for reconsideration is denied. Cross-Complainant
is to give notice.