Judge: Holly J. Fujie, Case: 21STCV06450, Date: 2023-03-14 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 21STCV06450    Hearing Date: March 14, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTY: Plaintiffs

The Court has considered the moving papers.  No opposition papers were filed.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure (“CCP”) section 1005, subdivision (b).

BACKGROUND

This action arises out of a landlord/tenant relationship.  Plaintiffs’ complaint (the “Complaint”) alleges: (1) breach of implied warranty of habitability; (2) breach of statutory warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) negligence; (5) violation of Civil Code section 1942.4; and (6) private nuisance.  On January 3, 2023, the Court granted the motion to quash service of summons (the “MTQ”) filed by Specially Appearing Defendant Estate of George E. Gutierrez (“Decedent”) on the grounds that Plaintiffs failed to serve Decedent’s insurance company, Crusader Insurance Company (“Crusader”) with the Complaint and summons in accordance with Probate Code section 552.

On January 13, 2023, Plaintiffs filed a motion for reconsideration (the “Motion”) asking that the Court reconsider its ruling on the MTQ based on new facts and evidence concerning the efforts of Crusader’s designated agent Jennifer Ziegler (“Ziegler”) to evade accepting service of the Complaint and summons. 

DISCUSSION

When an application for an order has been made to a judge or to a court and refused in whole or in part, granted, or granted conditionally, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order, make application to the same judge or court that made the order to reconsider the matter and modify, amend or revoke the prior order.  (CCP § 1008, subd. (a).)  Under CCP section 1008, subdivision (a), a motion for reconsideration must be based on new or different facts, circumstances or law.  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)  A party seeking reconsideration must also provide a satisfactory explanation for the failure to produce the evidence at an earlier time.  (Id.)  Facts of which the party seeking reconsideration was aware of at the time of the original ruling are not “new or different.”  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)  The party making the application shall 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.  A trial court has discretion with respect to granting a motion for reconsideration.  (New York Times Co. v. Superior Court, supra, 135 Cal.App.4th at 212.)

            After the Court granted the MTQ and before Plaintiffs filed the instant Motion, Plaintiffs unsuccessfully attempted to serve Ziegler on January 3, 5, 6 and 9, 2023.  (See Declaration of Paul Christensen (“Christensen Decl.”) ¶¶ 3-4.)  On February 23, 2023, Plaintiffs filed a supplemental declaration providing evidence that between January 30, 2023, through February 13, 2023, their process server attempted to serve Ziegler on five additional occasions and was unable to access Ziegler during any of these attempts.  (See Supp. Christensen Decl. ¶¶ 5-6, Exhibit A.)

            Plaintiffs argue that in light of their post-MTQ service efforts, the Court should reverse its ruling on the MTQ and deem service of the Complaint on Crusader proper.  The Court disagrees that Plaintiffs’ recent attempts to effectuate service are proper grounds to retroactively deem their initial attempt at service valid.  The Court notes that while Probate Code section 552 requires that the summons be served on the person designated in writing by the insurer, or if none, on the insurer, the provision does not preclude Plaintiffs from serving Ziegler with the Complaint and summons by a means other than personal service, such as by mail or substitute service.  (See Prob. Code § 552.)  The Court additionally notes that the Proofs of Service that the Court reviewed when it considered the MTQ did not correctly articulate the statutory basis for service on Crusader.  The Court therefore DENIES the Motion.

Moving party is ordered to give notice of this ruling. 

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 14th day of March 2023