Judge Jill Feeney, Case 20STCV36767 2023-02-27 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at SSCdept30@LACourt.org indicating the party's intention to submit.

Include the word "SUBMITS" in all caps and the case number in the subject line of the email and in the body provide the date and time of the hearing, your name, your contact information, the party you represent, whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, or non-party.

If a party submits but still intends to appear at the hearing, include the words "SUBMITS BUT WILL APPEAR" in the subject line of the email.

If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Unless all the parties have submitted, the Court will hear argument from any party that appears at the hearing and wishes to argue. The Court may change its tentative as a result of the argument and adopt the changed tentative as the final order at the end of that hearing, even if all the parties are not present.

Be advised that after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of said motion and may adopt the tentative ruling as the order of the Court.

“(a) When 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 an 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.

(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.

(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. 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.”

A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, the burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].) A disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) Newly produced documents which had been requested but not produced at the time of the earlier hearing properly constitute new of different facts not previously considered. (Hollister v. Benzl (1999) 71 CA4th 582, 585.)

Although parties may move for reconsideration only as authorized by Code of Civil Procedure section 1008, the statute “do[es] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel¿(2005) 35 Cal.4th 1094, 1107.)

Plaintiff alleges Fermelia failed to show that he had a meritorious case sufficient to set aside default judgment. Plaintiff cites Stiles v. Wallis (1983) 147 Cal. App. 3d 1143, 1147-1148. However, Stiles concerns a case where a defendant could not have moved to set aside default under Code Civ. Proc., section 473 because the motion to set aside was filed more than six months after the default had been entered. (Stiles v. Wallis (1983) 147 Cal. App. 3d 1143, 1147-1148.) The court in Stiles applied an equitable theory of relief, which had different and more stringent requirements than relief under Code Civ. Proc., section 473.

Here, Fermelia moved for relief under Code Civ. Proc., section 473. The Court entered default against Fermelia in August 2022 and Fermelia moved to set aside default in December 2022, four months after entry of default. Thus, Code Civ. Proc., section 473 was still available to Fermelia. Stiles and the equitable theory of relief does not apply here.

Plaintiff also cites McClain v. Kissler (2019) 39 Cal.App.5th 399, 404-405, 424, arguing that the issue of a lack of a statement of damages is irrelevant because Fermelia evaded service. However, McClain concerns a case where a court declined to grant relief from default because the defendants there could not establish that their counsel made a factual mistake leading to the default. The case offers no new law or other circumstance that would warrant reconsideration in the case at hand.

Plaintiff alleges no new facts, circumstances, or law in support of her motion for reconsideration. Rather, Plaintiff argues that Fermelia failed to show that he had a meritorious case when he moved to set aside default. Plaintiff may not relitigate the motion to set aside through a motion to reconsider. Plaintiff also argues that the Court did not hear her ex parte motion for sanctions and limitations on Fermelia’s motion to set aside. However, there are no new facts or circumstances in Plaintiff’s ex parte motion that would warrant reconsideration. Because Plaintiff fails to allege new facts, circumstances, or law in support of her motion to reconsider, the motion is denied.