Judge: Helen Zukin, Case: SC125247, Date: 2023-02-06 Tentative Ruling

Case Number: SC125247    Hearing Date: February 6, 2023    Dept: 207

Background

Plaintiff Yazmin Ortiz (“Plaintiff”) brings this action against Defendants Rudy Eisler, Individually and as Trustee for the Eisler Family Living Trust; Stephen Eisler, Individually and as Trustee for the Eisler Family 2000 Living Trust; Theresa Eisler, Individually and as Trustee for the Eisler Family 2000 Living Trust; Wendy Eisler, Individually and as Trustee for the Eisler Family Living Trust; Eisler Investments; West End Properties; Robert Sundeen; and Carole Sundeen (collectively “Defendants”). Plaintiff asserts several causes of action against Defendants stemming from her former tenancy at a residential property located at 2315 14^th Street, #9 in Santa Monica, California. Plaintiff’s tenancy and possession of the subject property was terminated pursuant to an unlawful detainer action filed in 2015.

On March 12, 2019, Defendants filed an anti-SLAPP motion to strike Plaintiff’s fifth, sixth, both tenth, twelfth, and sixteenth causes of action asserted in the operative First Amended Complaint. The Court granted the motion as to the fifth, both tenth, twelfth, and sixteenth causes of action arose from Defendants’ filing of the unlawful detainer action. As to the sixth cause of action, the Court granted the motion in part, striking only the allegations in that cause of action which related to the unlawful detainer action. Defendants subsequently filed a motion to recover their attorney’s fees incurred in bringing the successful anti-SLAPP motion.

Plaintiff appealed the Court’s order granting the motion to strike. The Court of Appeal reversed the trial court’s ruling in part as to the twelfth cause of action, finding that cause of action contained allegations which were not subject to an anti-SLAPP motion to strike, specifically claims that Defendants demanded rent in excess of maximums allowed under section 1809 of the Santa Monica Charter Amendment. The Court of Appeal otherwise affirmed the trial court’s ruling in its entirety. Plaintiff then filed a Petition for Review with the California Supreme Court, which was denied. Defendants subsequently filed a second motion for attorney’s fees, this time seeking to recover the fees they incurred in responding to Plaintiff’s appeal.

Defendants also brought a demurrer to Plaintiff’s first, second, third, fourth, sixth, seventh, eighth, ninth, eleventh, fourteenth, fifteenth, seventeenth, and eighteenth causes of action and separately moved to strike several of Plaintiff’s claims for damages.

Defendants’ demurrer, motion to strike, and both attorney fee motions were heard by the Court on December 6, 2022. In an order issued that same day, the Court sustained Defendants’ demurrer without leave to amend, granted in part and denied in part Defendants’ motion to strike, and granted Defendants’ attorney fee motions, albeit with reduced fee awards. Plaintiff now moves for reconsideration of the Court’s ruling on these motions. Plaintiff has filed one motion for reconsideration directed at the demurrer and motion to strike, and a second motion directed at Defendants’ attorney fee motions. As Plaintiff’s motions for reconsideration contain overlapping issues and arguments, the Court will discuss them together.

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 an affidavit showing “new or different facts, circumstances, or law” in order to grant a motion for reconsideration. (C.C.P. § 1008(a); see also¿Mink v. Superior Court¿(1992) 2 Cal.App.4th 1338, 1342.)

Analysis

            1.         Defendants’ Demurrer and Motion to Strike

Motions for reconsideration must be made within 10 days after service of the written notice of entry of the order to be reconsidered. On December 6, 2022, the Court mailed a copy of its December 6, order on Defendants’ Demurrer and Motion to Strike to Plaintiff, giving her written notice of its entry. Plaintiff thus had until December 16, 2022, to file and serve a motion for reconsideration of the December 6 order. Plaintiff timely filed a motion for reconsideration of the Court’s order on Defendants’ demurrer and motion to strike on December 16. Plaintiff then subsequently filed two additional motions for reconsideration of this same order on December 19 and December 20. These additional filings are untimely pursuant to Code Civ. Proc. § 1008 as they were filed more than ten days after the service of the December 6 order.

The timing requirements imposed by section 1008 are jurisdictional, and thus the Court cannot consider Plaintiff’s untimely filings in ruling on her December 16 motion for reconsideration. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108; C.C.P. § 1008(e) [“This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders…. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section”].)

Plaintiff argues the pendency of her petition for writ of certiorari before the United States Supreme Court merits reconsideration of the Court’s ruling on Defendants’ demurrer. The Court disagrees. As explained in the December 6 order, Plaintiff previously appealed the Court’s order granting Defendants’ anti-SLAPP motion to strike certain of Plaintiff’s causes of action. The Court of Appeal overruled the trial court’s ruling in part as to one cause of action and otherwise affirmed the granting of Defendants’ anti-SLAPP motion. Plaintiff then filed a Petition for Review with the California Supreme Court, which was denied. Plaintiff now represents she has filed a petition for writ of certiorari with the U.S. Supreme Court and claims, without explanation, that “this might influence the other causes of action” which are the subject of Defendants’ demurrer and motion to strike.

Defendants’ demurrer and motion to strike were directed to causes of action which were not the subject of Defendants’ anti-SLAPP motion to strike. As such, any appeal of the anti-SLAPP order would not bear on the sufficiency of Plaintiff’s other causes of action. Plaintiff claims the Court of Appeal has held res judicata did not apply to certain of her claims. Plaintiff confuses the issues raised on the anti-SLAPP motion and those presented by Defendants’ demurrer. Defendants’ anti-SLAPP motion was not based on res judicata, rather it alleged certain of Plaintiff’s causes of action arose from protected activity, namely Defendants’ filing of the prior unlawful detainer action, and Plaintiff’s inability to demonstrate a probability of success on those claims. The Court of Appeal did not make any ruling as to the applicability of the doctrine of res judicata to any of Plaintiff’s claims, indeed it expressly indicated it was not considering such arguments:

Plaintiff devotes much of her brief to responding to one of defendants’ arguments, raised in the trial court, that plaintiff could not prevail on her causes of action because they are barred by the doctrine of collateral estoppel and res judicata. The trial court, however, did not grant the anti-SLAPP motion on the basis of collateral estoppel or res judicata and thus plaintiff’s arguments are misplaced.

(Opinion at 12.)

Plaintiff further argues the Court did not consider her supplemental briefing on Defendants’ demurrer and motion to strike. The Court notes Plaintiff has not provided any evidence that she ever filed such a brief. The Court also notes Plaintiff was not granted leave of Court to file any supplemental briefing on Defendants’ demurrer and motion to strike, and accordingly any supplemental briefing she submitted would have been an improper surreply.

The briefing on Defendants’ demurrer and motion to strike were governed by Code Civ. Proc. §§ 1005(b)-(c). These provisions refer to “moving papers,” “papers opposing a motion,” and “reply papers,” and set certain deadlines for filing and serving such papers. There is no statutory authority for filing and serving papers after the moving party’s reply papers have been filed and served, that is, there is no provision for supplemental or surreply papers. The Court has no obligation to consider unauthorized filings in ruling on a motion. (See, e.g., Guimei v. General Electric Co. (2009) 172 Cal. App. 4th 689, 703; City of Arcadia v. State Water Resources Control Bd. (2010) 191 Cal. App. 4th 156, 180.) Moreover, Plaintiff does not offer any explanation as to what arguments or authority in this claimed supplemental briefing would compel the Court to reach a different result in ruling on the merits of Defendants’ demurrer or motion to strike.

Plaintiff also claims she was unable to hear 7 or 8 minutes of the hearing on Defendants’ demurrer and motion to strike. Plaintiff could have raised this issue at the hearing itself and chose not to. By definition, this is not a new or different fact, circumstance, or law which could not have been presented to the Court in ruling on Defendants’ demurrer and motion to strike. Plaintiff has also not demonstrated how her inability to hear 7 or 8 minutes of the hearing on Defendants’ demurrer and motion to strike would lead the Court to a different conclusion on the merits of Defendants’ motions.

The Court finds Plaintiff has failed to demonstrate any new or different facts, circumstances, or law which compel the Court to reach a different result in ruling on Defendants’ demurrer and motion to strike. Accordingly, her motion for reconsideration of the Court’s ruling on those motions is DENIED.

            2.         Defendants’ Motion for Attorney’s Fees

Defendants filed a motion to recover their attorney’s fees incurred in bringing a meritorious anti-SLAPP motion to strike certain of Plaintiff’s causes of action. After the Court of Appeal issued its opinion affirming in part and reversing in part the trial court’s ruling on the anti-SLAPP motion, Defendants filed a separate motion to recover their attorney’s fees incurred in responding to Plaintiff’s appeal. On December 6, 2022, the Court granted both motions, though significantly reduced the award of fees to Defendants based on the Court’s independent review of Defendants’ billing records. Plaintiff moves for reconsideration of the Court’s rulings on both motions.

Plaintiff repeats the argument discussed above regarding the pendency of her petition for writ of certiorari. Plaintiff argues that because her petition is still pending, it was premature for the Court to rule on Defendants’ motions for attorney’s fees in connection with the anti-SLAPP motion and anti-SLAPP appeal. Plaintiff’s argument has been rejected by Courts. (See, e.g.., Bankes v. Lucas (1992) 9 Cal.App.4th 365 [“an award of attorney fees as costs is a collateral matter which is embraced in the action but is not affected by the order from which an appeal is taken”] and Korchemny v. Piterman (2021) 68 Cal.App.5th 1032 [citing Bankes and rejecting argument that motion for attorney fees was subject to automatic stay for pending appeal]. Accordingly, the Court finds the pendency of her petition for certiorari is not a new fact or circumstance which merits reconsideration of the Court’s ruling on Defendants’ attorney fee motions.

Plaintiff next contends the Court erroneously stated she did not oppose Defendants’ motion for attorney’s fees incurred in responding to Plaintiff’s appeal of the anti-SLAPP order. The Court’s December 6 order noted “Plaintiff has not filed an opposition to [Defendant’s motion for appellate fees] and does not identify any claimed fee or costs which are alleged to be excessive or unreasonable.” (Order at 17.) Plaintiff has not demonstrated this statement is in any way incorrect. Plaintiff filed written oppositions to Defendants’ other motion for attorney’s fees, but did not file a written opposition to Defendants’ motion for attorney’s fees incurred in connection with Plaintiff’s appeal of the anti-SLAPP order.

Plaintiff also claims the Court did not evaluate the fees claimed in Defendant’s motion for appellate fees. This to is incorrect. The Court performed a thorough analysis of the fees claimed in Defendants’ motion for attorney’s fees incurred on appeal and struck more than $30,000 in fees claimed by Defendants.

Finally, Plaintiff reiterates the complaint discussed above regarding her inability to hear 7 or 8 minutes of the hearing on Defendants’ motions. For the reasons set forth above, the Court finds this issue is insufficient to compel the reconsideration of the merits of Defendants’ attorney fee motions.

The Court finds Plaintiff has failed to demonstrate any new or different facts, circumstances, or law which compel the Court to reach a different result in ruling on Defendants’ motions for attorney’s fees. Accordingly, her motion for reconsideration of the Court’s ruling on those motions is DENIED.

Conclusion

Plaintiff’s motions for reconsideration are DENIED.