Judge Helen Zukin, Case Number: 22SMCV01303, Date: 2023-06-20 Tentative Ruling

Judge: Helen Zukin, Case: 22SMCV01303, Date: 2023-06-20 Tentative Ruling

Case Number: 22SMCV01303 Hearing Date: June 20, 2023 Dept: 207

Background

Star International Market and Deli, Inc. (“Star International”) and Soraya Pourvasei (“Pourvasei” or, collectively with Star International, “Plaintiffs”) bring this action against Defendant and Cross-Complainant Mikhael Metals, LLC (“Cross-Complainant”) arising from an asset purchase agreement by which Cross-Complainant was to acquire Star International’s goodwill, assets, and fixtures. Cross-Complainant filed a Cross-Complaint against Plaintiffs and individuals Hossein Jahangiri, Sanaz Jahangiri, and Satiar Pourvasei (collectively “Cross-Defendants”). Plaintiffs brought a demurrer to the Cross-Complaint, which the Court overruled in part and sustained in part on May 18. Cross-Complainant now brings a motion for reconsideration of that May 18 ruling. Cross-Defendants oppose Cross-Complainant’s motion.

Legal Standard

Code Civ. Proc. “[s]ection 1008 governs motions for reconsideration, by parties or the court itself. It is the exclusive means for modifying, amending or revoking an order. (Morite of California v. Superior Court (1993) 19 Cal.App.4th 485, 490.) A motion pursuant to Code Civ. Proc. § 1008 must be made "within 10 days after service upon the party of written notice of entry of the order.” (C.C.P. § 1008(a).) The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration. (See C.C.P. § 1008(a); see also¿Mink v. Superior Court¿(1992) 2 Cal.App.4th 1338, 1342.)

Analysis

Cross-Defendants argue Cross-Complainant’s motion for reconsideration was untimely filed pursuant to Code Civ. Proc. § 1005(b). The Court agrees. The motion for reconsideration was filed on May 25, 2023, and set for hearing on June 20. On May 25, Cross-Complainant filed two proofs of service indicated Cross-Defendants had been served with the motion both electronically by email and by regular mail on May 25. Section 1005(b) mandates that a moving party provide at least 16 court days’ notice of motions. This period is further extended by 2 court days when notice of the motion is provided electronically, or by 5 calendar days when notice is provided by regular mail. Cross-Complainant filed and served the instant motion on May 25, which is 16 court days before the June 20 hearing date. Cross-Complainant thus failed to account for the extensions required based on the manner of its service on Cross-Defendants and its motion is thus untimely.

California Rules of Court, rule 3.1300(d) gives the Court discretion in whether to consider untimely filings. As the law favors the resolution of disputes on their merits, and Cross-Defendants were able to fully respond to merits of this untimely filing and does not claim to have suffered any prejudice from the untimeliness of Cross-Complainant’s filing, the Court in its discretion will consider Cross-Complainant’s motion on its merits.

On March 1, 2023, Cross-Complainant filed a Cross-Complaint. On April 19, 2023, Plaintiffs filed a demurrer which made repeated reference to a “First Amended Cross-Complaint” although no such pleading had ever been filed with the Court. That demurrer was set for hearing on May 18. On May 10, the Court’s staff reached out to counsel for Cross-Complainant by telephone to inquire as to the existence of a First Amended Cross-Complaint, notifying counsel that no such pleading had been filed with the Court. Cross-Complainant did not file an opposition to the demurrer or otherwise move the Court for relief prior to the May 18 hearing date on Plaintiffs’ demurrer.

Having received no explanation from Cross-Complainant regarding the First Amended Cross-Complaint referenced in Plaintiffs’ moving papers, the Court proceeded with its consideration of Plaintiffs’ demurrer, construing Plaintiffs’ references to a First Amended Cross-Complaint to be references to the operative March 1 Cross-Complaint. On May 16, Cross-Complainant untimely filed a new First Amended Cross-Complaint. Before that new pleading reached the Court’s electronic file, the Court posted a tentative ruling overruled the demurrer as to two cases of action and sustaining it without leave to amend as to Cross-Complainant’s cause of action for fraud. In sustaining Plaintiffs’ demurrer to the fraud claim, the Court noted the Cross-Complaint did not plead that cause of action with the requisite level of specificity and Cross-Complainant had effectively conceded it could not cure this issue by amendment by failing to oppose the demurrer or otherwise request leave to amend.

When the matter came on for hearing on May 18, Cross-Complainant for the first time claimed it had served an Amended Cross-Complaint on March 20, 2023, which mooted the demurrer and requested the Court reverse its tentative ruling as to the fraud claim. The Court rejected Cross-Complainant’s argument and issued a minute order on May 18 adopting its tentative ruling.

Cross-Complainant now moves for reconsideration of that May 18 order. Cross-Complainant acknowledges a motion for reconsideration may only be properly granted where “where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.” (Motion at 4.) Cross-Complainant’s motion fails to satisfy either requirement. Cross-Complainant attempts to carry this burden by arguing:

The Court and Counsel for Plaintiff based their rulings and their motions on documents that were not the current, complete, and correct set of documents in this case. Through apparent technical or other issues not caused by any party or by the Court, the First Amended Cross Complaint that would have rendered the entire Demurrer moot and thus taken the motion off the calendar was never received by the Court, unbeknownst to either counsel or the Court. After the previous ruling was made, it was discovered by counsel for Defendants and Cross Complainants that both the Court and opposing counsel were proceeding using documents that counsel for Defendants and Cross-Complainants justifiably believed to have been on file with the Court that apparently somehow were not. Therefore, the Court did not have before it the correct or accurate documents with which to make this ruling, due to no fault of its own nor any fault of any counsel or party to the action. These facts were discovered after the hearing date and are a justification for this Motion.

(Motion at 2.) These representations are inaccurate and flatly contradicted by the declaration of counsel attached to Cross-Complainant’s motion. Cross-Complainant alleges above that it did not discover that the March 20 Amended Cross-Complaint was never filed until after the May 18 hearing. Yet counsel acknowledges he received a telephone call from the Court’s staff on May 10, informing him of this very fact. (Shafie Decl. at ¶5.) This fact was also noted in the Court’s May 17 tentative ruling on Plaintiffs’ demurrer and was discussed at length at the May 18 hearing. (Id. at ¶7.) The Court thus rejects Cross-Complainant’s claim that this issue was not discovered until after the May 18 hearing.

Cross-Complainant appears to suggest that its filing of a First Amended Cross-Complaint on May 16 should have mooted the demurrer because it filed that amended pleading as “a matter of right.” (Id. at ¶6.) However, the May 16 pleading was not filed in conformance with Code Civ. Proc. § 472(a). Under section 472(a), a “may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties.” Thus, to file the First Amended Cross-Complaint as a matter of right without leave of Court, Cross-Complaint was required to file it no later than the time to oppose Plaintiffs’ demurrer under section 1005(b) or by stipulation of the parties. The May 16 filing was well past Cross-Complainant’s deadline to file an opposition and no stipulation was ever filed indicating the parties had agreed to permit such filing. The May 16 filing was thus untimely and filed without leave of Court and thus has no force or effect in these proceedings. To avoid any further confusion, the Court on its own motion strikes the May 16 First Amended Cross-Complaint pursuant to Code Civ. Proc. § 436.

Cross-Defendants argue this motion should have been brought as a motion for relief based on mistake, surprise, neglect, or inadvertence under Code Civ. Proc. § 473(b). The Court agrees, but it cannot construe Cross-Complainant’s motion for reconsideration as a motion under section 473 because Cross-Complainant has expressly represented that its failure to oppose the demurrer or timely file an amended pleading was not “the fault of any counsel or party to the action.” (Motion at 2.)

For these reasons, Cross-Complainant’s motion for reconsideration is DENIED.

Conclusion

Defendant and Cross-Complainant Mikhael Metals, LLC’s motion for reconsideration is DENIED.