Judge Holly J. Fujie, Case Number: 23STCP01780, Date: 2023-09-29 Tentative Ruling

On May 24, 2023, Plaintiff Leah Alspaugh (“Plaintiff”) filed a Complaint for Mechanic Lien Claim for Unpaid Wages on Labor against Defendant BNY Bank (“Defendant”).

On August 21, 2023, Plaintiff filed a Motion for Default Mechanics Lien and Order for Default Judgment. The Court denied this motion on September 29, 2023.

On September 26, 2023, Defendant filed a Motion to Quash Service of Summons. The Court granted this motion on October 20, 2023.

On October 24, 2023, Plaintiff filed this instant Motion for Reconsideration. On January 8, 2024, Defendant filed its opposition. The reply was due on March 15, 2024. As of March 19, 2024, no reply has been filed.

Pursuant to Code of Civil Procedure Section 1008, subdivision (a), “[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. 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.” (Code Civ. Proc., § 1008, subd. (a).)

As it relates to new or different facts, circumstances, or law under Code of Civil Procedure Section 1008, subdivision (a), “the moving party must provide a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) Furthermore, “facts of which the party seeking reconsideration was aware at the time of the original ruling are not “new or different.” (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)

A formal notice of ruling is required to set the time limit running to file a motion for reconsideration. The 10-day time limit runs from service of notice of entry of the order. (Code Civ. Proc., § 1008, subd. (a).)

The Court’s ruling on Defendant’s Motion to Quash Service of Summons was served on the parties on October 20, 2023. Plaintiff filed this instant motion four (4) days later. Thus, Plaintiff’s Motion for Reconsideration is timely because it was filed within ten (10) days of formal notice of the ruling on the Motion to Quash Service of Summons.

As a preliminary matter, the Court notes that the present motion is titled “Motion for Reconsideration Amended Complaint Motion to Compel,” which is procedurally improper. Nonetheless, the motion reads this as a motion for reconsideration of the Court’s October 20, 2023 ruling on Defendant’s Motion to Quash Service of Summons. As such, the Court will treat the motion as one for reconsideration, not one to compel or amend the complaint.

Plaintiff argues proof of service was properly filed with the complaint and the complaint is valid. Plaintiff further contends the Court did not recognize the May 23, 2023 filing of her claim for mechanic lien filed with the clerk’s office of Los Angeles, CA. Plaintiff also contends Defendant is a corporation where any summons and complaint can be served on any employee, operator, director, broker, or dealer in the complaint. Moreover, Plaintiff raises several arguments concerning Defendant’s now moot demurrer. Lastly, Plaintiff attempts to compel subpoenas served on purported witnesses and mentions filing an amended complaint.

In opposition, Defendant argues Plaintiff merely asserts she has properly served Defendant and that in her opinion the Court does not have jurisdiction over the Defendant. Furthermore, Defendant asserts Plaintiff attempts to attack its Demurrer that the Court has already deemed moot. As such, Defendant argues this present motion is completely devoid of any new facts or law that support reconsideration. In fact, Defendant contends the motion simply recites and references “proofs of service” dates which were deemed insufficient at the October 20, 2023 hearing. Defendant also asserts Plaintiff failed to attach any “proofs of service” for the complaint in this instant motion that comply with California laws that govern service for a business. Moreover, Defendant argues that this instant motion is procedurally defective because it lacks the required affidavit detailing the first motion and the respects in which the new motion differs from it but rather argues the overall merits of the case. Similarly, Defendant contends the bulk of this motion simply repeats the allegations in the unintelligible Complaint. Additionally, Defendant contends the Court’s analysis of the law in Defendant’s motion to quash is sound and correct. Finally, Defendant asserts Plaintiff failed to comply with the service requirements of Code of Civil Procedure Section 416.10 as the Mechanics Lien Complaint was not mailed to a person designated as agent for service of process, not served on other parties able to receive service of its behalf as a corporation, failed to provide evidence establishing actual delivery to the person to be served for service by mail outside the state; and failed to comply with additional requirements of Code of Civil Procedure Section 417.20.

The Court finds that Plaintiff’s motion is facially deficient as it does not comply with the affidavit requirements setting forth 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. Further, Plaintiff does not attempt to present any new or different facts or law that would establish a basis for reconsideration of the October 20, 2023 order.

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.

Hon. Holly J. Fujie

Judge of the Superior Court