Judge Gregory Keosian, Case 20STCV27718 2023-05-08 Tentative Ruling

Judge: Gregory Keosian, Case: 20STCV27718, Date: 2023-05-08 Tentative Ruling

Case Number: 20STCV27718 Hearing Date: May 8, 2023 Dept: 61

Defendants Skyhigh Valencia, LLC, Robert Rafia, Mahmoud Malakafazali, and Ron Tucker’s Motion for Reconsideration is DENIED

I. MOTION FOR RECONSIDERATION

Code Civ. Proc. § 1008 is the exclusive means for seeking reconsideration of an order or renewing a motion. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 384.) The application to reconsider the matter and modify, amend, or revoke the prior order must be made within 10 days after service upon the party of written notice of entry of the order to the same judge or court that made the order. (Code Civ. Proc. § 1008(a).) A motion for reconsideration may only be brought if the party moving for reconsideration can offer “new or different facts, circumstances, or law” which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Id.) There is a strict requirement of diligence - i.e., the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) “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 (2005) 135 Cal.App.4th 206, 212–13.)

Defendants Skyhigh Valencia, LLC, Robert Rafia, Mahmoud Malakafazali, and Ron Tucker (Defendants) move for reconsideration of this court’s order of March 8, 2023, ruling that no offset for consequential damages were available under Civil Code § 1951.2, subd. (a)(1). Defendants argue for reconsideration on the grounds that on March 14, 2023, Defendants discovered a stipulated judgment entered in an unlawful detainer case brought by Plaintiff against Jurassic Jump, LLC and Atousa Afshari, cross-defendants in this action and the assignees of Defendants’ interest in the lease at issue in this action. Defendants argue that Plaintiff in that stipulated judgment took positions as to the amount of damages and the date of the lease’s termination at odds with its position in the present action, and which it ought to be estopped from denying here. (Motion at pp. 7–8.) Defendants also argue that this court lacked the power to move for summary adjudication sua sponte, and that this court’s March 8 ruling was upon such a motion. (Motion at pp. 9–10.)

Plaintiff in opposition argues that the motion for reconsideration is untimely, as it was served more than ten days after service of notice of the order. (Opposition at p. 2.) Plaintiff also argues that judicial estoppel is not applicable as what Defendants describe as a judgment was in reality a stipulation that specifically was not a judgment. (Opposition at pp. 2–8.)

The present motion is not untimely, as the motion was served within 15 calendar days from the date of service — 10 days under Code of Civil Procedure § 1008, and five additional days for service by mail under Code of Civil Procedure § 1013.

However, Defendants’ motion falters on substantive grounds. The doctrine of judicial estoppel requires that the party to be estopped have taken two “totally inconsistent” positions in separate judicial proceedings. (Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 121.) Here, Defendants identify as the two inconsistent positions taken by Plaintiff as being the date of the termination of the lease, and the amount of past rent damages — Plaintiff now claims the lease was terminated on June 30, 2022, and that the past rent damages are in excess of $600,000, when in the stipulation it claimed that the past rent damages were $125,906.16 and that the lease was terminated on September 29, 2021, the date of the stipulation. (Opposition at pp. 7–8.) But assuming that the “tribunal adopted” the positions evinced in the prior stipulation — the stipulation stated that it would only be entered as a judgment upon a default of the obligations stated therein (Opposition Exh. C) and no such judgment was ever entered — neither of these inconsistent positions formed a basis for this court’s March 8, 2023 order. That order made no findings as to the amount of past rent due or the date of the lease’s termination, but only determined that an offset founded on mitigation of consequential damages was unavailable when the only damages sought were those named in Civil Code § 1951.2, subd. (a)(1). This court did not evaluate evidence to settle the existence of triable issues of fact as to the date of lease termination or the amount of damages, and the existence of the prior judgment has no bearing on the determination made in the March 8 order with regard to the applicability of Civil Code § 1951.2.

For the same reason, this court did not exceed its authority in making the order, as the order was not a procedurally defective, sua sponte motion for summary adjudication. Defendants rely on the authority that stands only for the proposition that a court is not “permitted to act sua sponte” in determining “there is no triable issue as to any material fact.” (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 75.) But this court’s order of March 8 was not a ruling upon a motion for summary judgment, sua sponte or otherwise, involving determinations as to the existence of triable issues of fact, but addressed a pure issue of law: the availability of an offset for damages under Civil Code § 1951.2, subd. (a)(1).

Accordingly, the motion for reconsideration is DENIED.