Judge: Holly J. Fujie, Case: 22STCV17722, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCV17722    Hearing Date: May 5, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Plaintiff

RESPONDING PARTY: Defendant Wells Fargo Bank, N.A., individually and behalf of Home Equity Department of Wells Fargo Bank, N.A. (collectively, “Wells Fargo”)

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

BACKGROUND

On May 13, 2022, Plaintiff filed a complaint (the “Complaint”) alleging: (1) accounting; and (2) general negligence.  On September 28, 2022, the Court sustained Wells Fargo’s demurrer (the “Demurrer”) to the Complaint without leave to amend.  On September 29, 2022, Wells Fargo served Plaintiff with notice of the September 28, 2022 ruling.  On November 2, 2022, the Court issued an order dismissing the Complaint as to Wells Fargo with prejudice. 

On November 15, 2022, Plaintiff filed a motion for reconsideration pursuant to CCP section 1008, subdivision (a) (the “Motion”) asking that the Court reconsider its September 28, 2022 ruling on the Demurrer and grant Plaintiff leave to file a first amended complaint (the “FAC”). 

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.  When a demurrer has been sustained without leave to amend, it is proper to seek reconsideration based on a proposed amended complaint alleging different facts.  (See Rains v. Superior Court (1984) 150 Cal.App.3d 933, 944.)  If, upon reconsideration, the proposed amended complaint states a valid cause of action, the court must vacate its prior order and grant the plaintiff leave to file an amended complaint.  (See Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386-87.)  The 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.)

The Motion argues that the Court should reconsider its September 28, 2022 ruling sustaining the Demurrer without leave to amend on the grounds that Plaintiff’s counsel, who had been retained on September 27, 2022, was not present during the hearing.  (See Declaration of George Murphy (“Murphy Decl.”) ¶ 3.)[1]  The Motion contends that Plaintiff was deprived of due process when the Court conducted the hearing without her counsel.  (See Murphy Decl. ¶ 6.) 

The Court is not convinced by the Motion’s arguments regarding due process.  The Court’s records reflect that Plaintiff, while self-represented, was served with the Demurrer on August 1, 2022 and that she filed opposition papers on September 19, 2022. 

In addition, the Motion does not comply with CCP section 1008, subdivision (a) because: (1) it was filed more than ten days after Plaintiff was served with notice of the September 28, 2022 ruling; and (2) it was filed after a final judgment of dismissal was entered in favor of Wells Fargo.  Furthermore, the Court observes that its ruling on the Demurrer was based on the merits of Wells Fargo’s challenges to the sufficiency of the Complaint’s allegations and the Motion does not set forth any facts regarding how the defects of the Complaint that were identified by the Court would be cured by an amended pleading.  Nor does the Motion include a copy of a proposed FAC.  The Court therefore DENIES the Motion. 

Moving party is ordered to give notice of this ruling. 

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 5th day of May 2023