Judge Jill Feeney, Case Number: 21STCV42391, Date: 2024-05-20 Tentative Ruling

On March 2, 2023, Plaintiff’s counsel represented he intended to withdraw as counsel and that Plaintiff intended to file an amended complaint.

On July 21, 2023, Plaintiff requested additional time to retain new counsel and serve Defendant. The Court advised Plaintiff that the Court would exercise discretion to dismiss the action unless she filed a declaration demonstrating all efforts made to serve Defendant.

On November 30, 2023, the Court conferred with Plaintiff and continued the hearing on dismissal for failure to file proof of service to March 2024.

Plaintiffs move for reconsideration of the Court’s order entered on March 6, 2024 order dismissing this action for failure to serve Defendant in two years.

(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 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.

(c) If a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.) Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Id.)

Here, the Court first notes that Plaintiffs are now unrepresented. Although Lindenberg may appear pro se, Sett Management may not appear pro se because it is a corporation that may not represent itself, nor may it be represented by a corporate officer, director, or employee who is not an attorney. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145.) The Court will not consider the motion with respect to Sett Management because it may not appear pro se.

The Court previously dismissed this case under Code Civ. Proc., section 583.410 on the grounds that it had been more than two years since this action commenced and Plaintiffs had not served Defendant.

Lindenberg argues that the delay in service was due to the incompetence of her previous counsel and that she has since been diligent in attempting to serve Defendant despite being self-represented. Lindenberg also argues she has had difficulty serving Defendant because doing so would compromise her safety. Additionally, Lindenberg argues the Court failed to consider a concurrent criminal investigation involving the same parties. Finally, Lindenberg argues that the delay in service was minimal and there is no prejudice to Defendant.

Lindenberg fails to cite new evidence, law, or other circumstances which would justify reconsideration. The information about the alleged incompetence of Lindenberg’s previous counsel, threats to her safety, and her self-represented status was previously included in a declaration Lindenberg filed in November 2023. Moreover, Lindenberg has been self-represented since May 2023 and she has failed to serve Defendant. Lindenberg fails to explain how a concurrent criminal investigation is relevant to her failure to prosecute this case.

The Court further notes that Lindenberg did not attach the exhibits referenced in her declaration filed on March 18, 2024. In that declaration, Plaintiff contends that she filed an application for permission to serve by publication. The Court’s docket does not reflect any such filing. Moreover, the Court notes that Plaintiff references attempts to effectuate serve through Nationwide Legal and Watchmen Group but does not attach any declarations or other documentation from employees of either organization. There is no new information about the efforts undertaken or when they occurred.

Because Lindenberg fails to present new facts, circumstances, or law which would justify reconsideration, the Court cannot grant this motion. Plaintiffs’ motion for reconsideration is denied.