Judge: Jon R. Takasugi, Case: 21STCV16983, Date: 2022-09-13 Tentative Ruling

Case Number: 21STCV16983    Hearing Date: September 13, 2022    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENATIVE RULING

Defendants’ motion for reconsideration is DENIED.

On 5/5/2021, Jeremy Bijaoui (Plaintiff) initiated this action. On 2/10/2022, Plaintiff filed a first amended complaint (FAC) against Zadock Eugene Marshall (Marshall), Laquittah Quiana, Freeman aka Kiki Freeman, Perfect Kush (PKCC), and Erwin Partners, LLC, alleging: (1) breach of written contract; (2) breach of oral contract; (3) breach of fiduciary duty; (4) negligent misrepresentation; (5) intentional misrepresentation; (6) negligence; (7) declaratory relief; (8) intentional interference with contractual relations; (9) breach of covenant of good faith and fair dealing; (10) breach of implied contract; (11) constructive fraud; (12) an accounting; (13) conversion and conspiracy to convert; (14) money had and received; (15) unjust enrichment; and (16) unfair competition.

            On 6/17/2022, Plaintiff’s unopposed motion for preliminary injunction was granted.

            Now, Defendants Marshall and PKCC move for reconsideration of the ruling.

Discussion

            Defendants argue that reconsideration is appropriate because Defendants have discovered new evidence regarding the need for a Receiver, and their delayed response was due to this discovery of new evidence and inadvertence.

            The Court is unpersuaded for several reasons.

            First, Defendants “new evidence” is that the parties no longer have an agreement because Sections 5, 6, or 7 of the Agreement provide that the Agreement terminates if condition precedents are not met, and Plaintiff did not meet those conditions. However, as a preliminary matter, no factual determination has been made as to whether or not Plaintiff breached any portion of the agreement, and the Court must accept well-pled allegations as true at the pleading stage. Second, even setting aside this issue, Defendants did not submit any evidence that could show that Plaintiff did not meet these condition precedents. Rather, they have only included a conclusory assertion that he did not. Given that there has been no adjudication of whether or not the Agreement’s condition precedents were met, Plaintiff’s argument that the Receiver is unnecessary because there is no longer an Agreement is not persuasive.

            Second, even assuming Defendants did submit evidence that there was no longer a valid Agreement, Defendants do not explain how or why this evidence is “new” and was only discovered after the preliminary injunction hearing. Defendants offer no details as to their efforts to discover this “new” evidence. As such, there is no basis for concluding that this evidence was not available at the time of the hearing, and Defendants certainly have not set forth any evidence that could show they were “diligently searching for new evidence” and as a result failed to respond.

Motions for reconsideration are not meant to allow parties that fail to oppose a motion a second bite at the apple. The fact that Defendants would have submitted this evidence if they had opposed the motion does not make this evidence new.

            In sum, Defendants have not shown any new facts or law that would warrant setting aside the Court’s previous ruling on the motion for preliminary injunction.

            Based on the foregoing, Defendants’ motion for reconsideration is denied.

It is so ordered.

Dated:  September    , 2022

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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