Judge: James C. Chalfant, Case: 21STCP01892, Date: 2022-08-16 Tentative Ruling

Case Number: 21STCP01892    Hearing Date: August 16, 2022    Dept: 85

            Petitioner Edward Miller (“Miller”) moves for reconsideration of the court’s order dated June 21, 2022 denying his petition for a writ of mandate directing Respondent Los Angeles County Civil Service Commission (“Commission”) to set aside its decision demoting him from Grade IV Deputy District Attorney (“Grade IV”) to Grade III Deputy District Attorney (“Grade III”).

            The court has read and considered the opening brief and opposition[1] (no reply was filed) and renders the following tentative decision.

            A. Statement of the Case

            1. Petition

            Petitioner Miller commenced this proceeding on June 12, 2021.  The verified Petition alleges a cause of action for administrative mandate and alleges in pertinent part as follows.

            Miller was a Grade IV in the District Attorney’s Office (sometimes “Department”) on September 27, 2017 when a female employee under his supervision accused him of sexual harassment. 

            On July 24, 2018, the District Attorney’s Office served Miller with a Notice of Intent to Reduce him from a Grade IV to a Grade III.  The notice listed nine allegations, seven of which occurred more than three years earlier.  Miller denied the sexual harassment claims, arguing that he acted in response to the female employee’s flirtation, who exaggerated her story over time. 

            On December 27, 2018, Miller received a Notice of Reduction from Grade IV to Grade III, effective January 1, 2019.  Miller requested and received a hearing by the Commission.  During the hearing, he moved for dismissal of the seven allegations that were more than three years old under the doctrine of laches and the Hearing Officer denied the motion.

            On May 28, 2020, the Hearing Officer issued proposed findings that eight of the allegations are true.  The Commission overruled Miller’s objections and adopted the Hearing Officer’s proposed findings.

            Petitioner Miller seeks a writ of mandate compelling the Commission to set aside its decision and reinstate him to a Grade IV with full back pay and benefits, as well as attorney’s fees and costs.

            2. Course of Proceedings

            No proof of service is on file for the Petition, summons, and moving papers.

            On July 14, 2021, Respondent Commission filed a Notice of No Beneficial Interest in the Outcome.

            On July 16, 2021, Real Party-in-Interest County filed an Answer.

            On June 21, 2022, the court denied the Petition and the parties waived notice.

            B. Applicable Law

Code of Civil Procedure section 1008(a) (“section 1008(a)”) provides for reconsideration of court orders.  Section 1008(a)’s motion to reconsider is broad in scope and allows any party affected by the order to seek reconsideration and modification, amendment or vacation of prior orders.  Relief under section 1008(a) is strictly limited; motions to reconsider must be brought within 10 days of service of written notice of the original order. 

A motion for reconsideration constitutes the exclusive means for a party seeking modification, amendment or revocation of an order.  Morite of Calif. v. Superior Court, (1993) 19 Cal.App.4th 485, 490.  To be entitled to reconsideration, a party must show (1) new or different facts, and (2) a satisfactory explanation for failing to produce such evidence earlier.  Kalivas v. Barry Controls Corp., (“Kalivas”) (1996) 49 Cal.App.4th 1152, 1160-61.  The requirement of satisfactory explanation for failing to provide the evidence earlier can only be described as a strict requirement of diligence.  Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.  A motion for reconsideration cannot be granted on the ground that the court misapplied the law in its initial ruling.  Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.  A mistake based on ignorance of law is not a proper basis for reconsideration.  Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670. 

Relief under CCP section 1008(a) is strictly limited.  A motion to reconsider must be brought within ten days of service of written notice of the original order.  Kalivas, supra, 49 Cal.App.4th at 1160. 

            C. Analysis

            Petitioner Miller moves for reconsideration under section 1008(a).  Miller argues that he has never seen a court so conflicted in issuing a ruling and that he was surprised that the court though denial of his right to cross-examine Nishita was his strongest argument when he thought another issue was.  Mot. at 2.  He further argues that the court was misled by the hearing officer’s conclusions and addresses the four charges against him in the balance of his motion.  Mot. at 4-11.

            Any motion to reconsider was required to be filed within “10 days after service of written notice of entry of the order”.  CCP  211008(a).  This means ten calendar days.  See Advanced Building Maitnenance v. State Compensation Insurance Fund, (1996) 49 Cal.App.4^th 1388, 1392(calculating ten-day period as calendar days).   The court ruled on the Petition on June 21, 2022 and the parties waived notice.  Miller was required to file his motion within ten calendar days, or by July 1, 2022.  He did not file the instant motion until July 6, 2022.   The motion is untimely and must be denied for that reason. 

Additionally, as the opposition notes, Miller’s motion does not present any new or different facts.  It relies on the same Administrative Record and reargues the inferences and conclusions from the Record.  This is not a proper basis for reconsideration.

            The motion for reconsideration is denied.