Judge: Joel L. Lofton, Case: 22AHCV01020, Date: 2023-03-13 Tentative Ruling

Case Number: 22AHCV01020    Hearing Date: March 13, 2023    Dept: X

   Tentative Ruling

Judge Joel L. Lofton, Department X

HEARING DATE:     March 13, 2023                                   TRIAL DATE: No date set.

CASE:                         CHU CHOW v. GEICO GENERAL INSURANCE COMPANY; and DOES 1 to 50, inclusive.

CASE NO.:                 22AHCV01020

MOTION FOR RECONSDERATION

MOVING PARTY:               Plaintiff Chu Chow

RESPONDING PARTY:      Defendant Geico General Insurance Company

SERVICE:                              Filed February 15, 2023

OPPOSITION:                       Filed February 28, 2023

REPLY:                                   Filed March 6, 2023

RELIEF REQUESTED

            Plaintiff moves to rescind Defendant’s appraisal.

BACKGROUND

             This case arises out of Plaintiff Chu Chow’s (“Plaintiff”) claim that Defendant Geico General Insurance Company (“Defendant”) has violated California Fair Claims Settlement Practices Regulations.

TENTATIVE RULING

            Plaintiff’s motion is DENIED.

LEGAL STANDARD

“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.” (Code Civ. Proc. section 1008, subd. (a).)  

DISCUSSION

             Although Plaintiff’s motion is nominally titled a motion to rescind an appraisal, Plaintiff essentially argues that the contract is unenforceable. Plaintiff’s motion is a motion for reconsideration of this court’s previous order granting Defendant’s motion to compel an appraisal and stay the proceedings.

            Defendant provides that it did not receive proper notice for this action because Plaintiff purports to have mailed the documents on February 15, but Defendant provides it never received the mailing. Defendant also provides that Plaintiff faxed Defendant a copy of the motion on February 21. In either instance, Plaintiff’s notice fails to comply with Code of Civil Procedure section 1005, subdivision (b).

            Further, Plaintiff’s motion does not allege “new or different facts, circumstances, or law” to provide sufficient basis to bring this motion. (Code Civ. Proc. section 1008, subd. (a).)  In reply, Plaintiff argues that this motion is a separate motion for recission rather than for reconsideration. Plaintiff provides no legal basis establishing grounds to bring a motion to rescind the court’s order compelling appraisal. Additionally, Plaintiff’s arguments are primarily directed at attempting to demonstrate that the contract is unconscionable. However, neither the contract, its language, or the law as applied to the contract is new fact or law sufficient to support a motion for reconsideration.

CONCLUSION

            Plaintiff’s motion is DENIED.

Dated:  March 13, 2023                                  ___________________________________

                                                                                    Joel L. Lofton

                                                                                    Judge of the Superior Court