Judge Jill Feeney, Case 21STCV07504 2023-04-27 Tentative Ruling

This is an action for negligence and premises liability involving a workplace accident where Plaintiff fell off of a cart he was operating during a landscaping project. Plaintiff Christopher Michael Dowding filed his Complaint against Hilary Susan Rose, Dirty Girl Organic Landcare, and David Michael Talla on February 25, 2021.

Plaintiff moves for the Court to reconsider its order granting Defendants Todd Blue and Sapphire America, LLC’s motion for summary judgment. Plaintiff argues that Todd Blue and Sapphire America retained control over the work to be performed on the property. Plaintiff also argues that he did not have the opportunity to allow an expert to inspect the premises and make comments on a geological report. Plaintiff also alleges he did not have the opportunity to depose Defendants’ expert, Stephen Donell. Additionally, Plaintiff alleges Defendants concealed information about the condition of the property.

“(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(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order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.)

If the above statutory requirements are granted, reconsideration should be granted. However, a court is not required to change its decision upon reconsideration. (Corns v. Miller (1986) 181 CA3d 195, 202, 226 CR 247, 251.) 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.)

A court loses jurisdiction to rule on a motion for reconsideration after entry of judgment. (Marshall v Webster (2020) 54 CA5th 275, 281.) After a court grants a motion for summary judgment and judgment is entered, a court may not thereafter rule on a motion for consideration. (Safeco Ins. Co. v Architectural Facades Unlimited, Inc. (2005) 134 CA4th 1477, 1482.)

“A motion for new trial is a creature of statute; . . .” (Neal v. Montgomery Elevator Co.¿(1992) 7 Cal. App. 4th 1194, 1198.) A movant must satisfy Code of Civil Procedure sections 657 and 659. Under Code of Civil Procedure section 657, a motion for new trial may be granted if there is any:

[¶] 1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. [¶] 2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors. [¶] 3. Accident or surprise, which ordinary prudence could not have guarded against. [¶] 4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial. [¶] 5. Excessive or inadequate damages. [¶] 6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law. [¶] 7. Error in law, occurring at the trial and excepted to by the party making the application.

A new trial motion is available to challenge a grant of summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.) When a new trial is granted following summary judgment, the new trial motion is in the nature of a¿motion for reconsideration¿(Code Civ. Proc., section 1008) and subject to the same requirements (Passavanti v. Williams¿(1990) 225 Cal.App.3d 1602, 1606.)

A motion for new trial must be filed within 15 days of the date of mailing of entry of judgment by the clerk of the court or within 180 days after entry of judgment, whichever is earliest. (Code Civ. Proc., Section 659.)

Plaintiff moves for reconsideration of the February 21, 2023 order granting Todd Blue and Sapphire America, LLC’s motion for summary judgment. However, the judgment in favor of Todd Blue and Sapphire America, LLC was signed and entered on March 2, 2023. The Court does not have jurisdiction to rule on the motion to reconsider because judgment has already been entered. Plaintiff also moves for a new trial, which is subject to the same requirements as a motion for reconsideration. The Court will examine the merits of Plaintiff’s arguments in the ruling for Plaintiff’s motion for a new trial.

Plaintiff moves for new trial, alleging that the Court ignored Defendants’ failure to respond to discovery. The Court notes that the motion for new trial must be denied on procedural grounds because Plaintiff was required to file his motion within 15 days of the date a notice of entry of judgment was served. Here, the Court mailed the notice of judgment on March 3, 2023. This motion was filed on March 27, 2023 and is therefore untimely.

Plaintiff argues that recent case law changed the application of the Privette doctrine. Plaintiff cites Brown v. Beach House Design & Development (2022) 85 Cal.App.5th 516, 530. However, Brown concerns a hirer that procured scaffolding from which a plaintiff fell and whether the hirer fully delegated maintenance of the scaffolding to the contractor. Here, the Court found that the Defendants did not exercise control over their contractor’s work because they occasionally provided aesthetic opinions about plants on their property and did not direct any part of the contractor’s work. There is no issue as to whether the Defendants fully delegated safety or another aspect of the contractor’s work.

Plaintiff also argues in his motion for new trial that the Court’s ruling granting summary judgment is based in substantial part on prior rulings and failed to consider Todd Blue and Sapphire Blue, LLC’s failure to produce discovery. Plaintiff alleges that the Defendants failed to produce a geological report and text messages between Todd Blue and Rose until January 11, 2022 (sic), which falls after the date Plaintiff’s opposition was due. However, the Court gave Plaintiff an opportunity to file supplemental briefing with respect to the missing discovery. The Court considered both the geological report and the text messages and found that they did not show the Blues retained control over the operative details of the contractor’s work.

Plaintiff alleges that Defendants’ delay in producing the geological report deprived Plaintiff of the opportunity to allow his own expert to inspect the premises and make comments on the report or its contents. However, Plaintiff fails to explain why Plaintiff could not have retained Plaintiff’s own expert at any time. As noted by the Court previously, the slope of the property is open and readily ascertainable. Moreover, as also noted in the Court’s decision, the report does not suggest the existence of a hazard on the property, much less a concealed hazard.

Additionally, Plaintiff has had access to the report since January 11, 2022 and did not retain an expert to make comments on the report. Plaintiff has not provided any new or fresh evidence such as another expert’s comments on the geological report, which would have justified a reversal of summary judgment.

Plaintiff also argues that the Court’s reliance on a declaration by Stephen Donell was improper because Donell is a real estate agent and not an engineer. This is not new or fresh evidence upon which a motion for new trial may be made. Additionally, Donnell’s resume submitted with the motion for summary judgment shows that he is an expert with expertise in property management, code enforcement actions, residential development, commercial and residential real estate, and health and safety compliance issues involving sub-standard real estate, among other subjects. Donell also completed coursework in real estate management, renovation safety, moisture intrusion, and hazard awareness from the Institute of Real Estate Management and other organizations. The Court saw no irregularity with Donell’s qualifications as an expert.