Judge: John J. Kralik, Case: 22BBCV00171, Date: 2023-01-27 Tentative Ruling

Case Number: 22BBCV00171    Hearing Date: January 27, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Lorenzo Espinosa (“Plaintiff” or “Espinosa”) alleges that he entered into a Residential Income Property Purchase Agreement and Joint Escrow Instructions (“Agreement”) with Defendant Jay Schermer and Leslie Druss as individuals and as trustees of the Schermer Trust dated March 7, 1984 (“Schermer Trust”) on January 11, 2022 involving the real property located at 6833-6835 Simpson Ave., North Hollywood, CA 91604.  Plaintiff alleges that escrow was opened on January 11, 2022 with Time Escrow, Inc., but alleges that the listing broker failed to disclose a conflict of interest between Time Escrow Inc. and Defendant Razmik (Ray) Mirzakhanian (broker of the transaction and owner of Time Escrow Inc.).  Plaintiff also alleges that Schermer Trust had refused to make all of the seller’s disclosures under the Agreement and refused to allow access to Plaintiff for inspection of the property.  Plaintiff believes that a second sale has been orchestrated with a different buyer. 

The complaint, filed March 17, 2022, alleges causes of action for: (1) breach of contract; (2) specific performance; and (3) intentional interference with contractual relations. 

On May 2, 2022, Defendant/Cross-Complainant Jay Schermer and Leslie Druss as individuals and as trustees of the Shermer Trust dated March 7, 1984, Raznik Mirzakhanian, Berkshire Hathaway Homeservices Crest, Poli Hernandez, and Julianne Whitaker filed a cross-complaint against Plaintiff/Cross-Defendant Espinosa for: (1) breach of contract; (2) fraud; (3) intentional interference with contractual relations; (4) declaratory relief; and (5) injunctive relief.

B.     Relevant Background

On October 13, 2022, Defendant Jay Schermer, Trustee of the Schermer Trust dated 3/7/84 filed a motion to compel Plaintiff to mediate and arbitrate his complaint for specific performance and to stay the complaint.  Plaintiff (in propria persona) opposed the motion.

On November 4, 2022, the Court granted Defendant’s motion to compel arbitration.

On November 14, 2022, Defendant filed a Notice of Ruling, showing that the order was served on Plaintiff on November 10, 2022 by email. 

C.     Motion on Calendar

On November 16, 2022, Plaintiff (in propria persona) filed a motion for reconsideration of the Notice of Ruling dated November 10, 2022 and for a statement of decision. 

The Court is not in receipt of an opposition brief.

LEGAL STANDARD

CCP § 1008(a) states: “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.”  (CCP § 1008(a).)

DISCUSSION

Plaintiff moves for reconsideration of the Court’s November 10, 2022 Notice of Ruling order.  It appears that Plaintiff’s motion is based on the Court’s November 4, 2022 Order granting Defendant’s motion to compel arbitration.

The motion is timely filed as the motion was filed on November 16, 2022, which was within 10 days of Defendant serving the notice of the Court’s November 4, 2022 order on November 10, 2022. 

Plaintiff moves to compel arbitration, arguing that new evidence has surfaced showing that he cannot be compelled to arbitrate this matter when Jay Schermer did not sign the arbitration agreement.  Plaintiff argues that while Jay Schermer signed the purchase agreement, he did not sign the arbitration agreement and thus cannot compel Plaintiff to arbitrate this matter.

However, this is not new or different facts, circumstances, and/or law.  “A motion for reconsideration must be based on new or different facts, circumstances or law (ibid.), and facts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’  [Citation.]  In addition, a party must provide a satisfactory explanation for failing to offer the evidence in the first instance.”  (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)  The Purchase Agreement was attached to Defendant’s motion to compel arbitration papers and, thus, Plaintiff’s argument in this motion for reconsideration could have and should have been raised at the time of his opposition to the motion to compel arbitration.  Plaintiff’s arguments in this motion for reconsideration do not amount to new or different facts, circumstances, and/or law.

The Purchase Agreement shows that Jay Schermer signed the Purchase Agreement and initialed each page of the Purchase Agreement.  While he did not expressly initial section 31’s Arbitration of Disputes (which Plaintiff and Jay Schermer’s wife initialed), he nonetheless initialed the bottom of the page.  Further, on the signature page, Jay Schermer agreed to the terms and conditions of the Purchase Agreement, which included the arbitration provision.  Thus, the Purchase Agreement is not a “blank agreement” as argued by Plaintiff.  (Mot. at p.7.) 

Moreover, Plaintiff’s citation to the law regarding signatories to an arbitration provision is not new or different law.  Plaintiff cites to Buckner v. Tamarin (2002) 98 Cal.App.4th 140, 142 (“The strong public policy in favor of arbitration does not extend to those who are not parties to an arbitration agreement, and a party cannot be compelled to arbitrate a dispute that he has not agreed to resolve by arbitration.”).  This legal proposition would apply where Plaintiff did not sign the agreement and thus the agreement would not be binding on him.  However, here, it undisputed by Plaintiff that he signed the arbitration agreement. 

As Plaintiff has not presented new or different facts, circumstances, or law, the motion for reconsideration is denied. 

Plaintiff’s request for a statement of decision is not applicable, as the Court has not conducted a trial on a question of fact.  (CRC Rule 3.1590.)  In any event, the Court has adequately explained its decisions on these matters.

CONCLUSION AND ORDER

Plaintiff Lorenzo Espinosa’s motion for reconsideration of the Court’s November 4, 2022 order is denied. 

Plaintiff shall provide notice of this order.