Judge: Joseph Lipner, Case: BC684588, Date: 2023-08-15 Tentative Ruling

Case Number: BC684588    Hearing Date: April 18, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Samual Freshman (“Freshman”), in his capacity as a trustee, moves for summary judgment against Plaintiff Tatiana Solomon (“Plaintiff”). In the alternative, Freshman moves for summary adjudication as to each of Plaintiff’s causes of action.

The Court DENIES Freshman’s motion for summary judgment.

The Court DENIES Freshman’s motion for summary adjudication.

Background

This is a landlord-tenant case.

Plaintiff lived at 404 N. Maple Drive, Unit 302 (the “Property”) for roughly nine years. Plaintiff alleges that the Property suffered a number of issues including mold growth, asbestos exposure, and inadequate flooring and soundproofing, which went unremedied by management.

The Property was owned by Defendant 404 N. Maple Dr., LLC (“404 Maple”) and Defendant Standard Management Company (“Standard Management”) managed the Property as the agent of 404 Maple. (Solomon Decl., Ex. D at pp. 1, 3, 7, 8.)

Plaintiff filed this action on November 28, 2017 against Defendants 404 Maple, Standard Management Company (“Standard Management”), and Samuel Freshman, individually and as trustee of the S and A Freshman Trust, U/T/A 6/28/89 (the “Trust”) (collectively, “Defendants”). The operative complaint is now the Second Amended Complaint (“SAC”), which raised claims for (1) negligence, (2) breach of the warranty of habitability; (3) fraud; (4) breach of the covenant of quiet enjoyment; (5) nuisance; (6) breach of contract; (7) intentional infliction of emotional distress (“IIED”); (8) violation of Business & Professions Code, section 17200, et seq.; and (9) constructive eviction.

The Court previously granted summary judgment in this case as to all named Defendants. Plaintiff appealed. The Court of appeal affirmed in part and reversed as to Plaintiff’s claims for (1) negligence; (2) breach of the warranty of habitability; (4) breach of the covenant of quiet enjoyment; (5) nuisance; and (9) constructive eviction. These claims are the only remaining causes of action in this case.

On January 23, 2023, Freshman moved for summary judgment both individually and as trustee of the Trust (the “January 23 Motion”). Freshman argued, among other things, that he was entitled to summary judgment because he did not own or manage the Property. The Court found that there were triable issues of fact that some of Plaintiff’s injuries occurred during the period when Freshman’s own evidence established that the Trust owned the Property. The Court noted that it was possible that Freshman should only have been sued in his capacity as a trustee, and not as an individual, but that Freshman did not make that distinction in the moving papers. The Court denied the motion.

Freshman again moved for summary judgment on November 20, 2023 (the “November 20 Motion”), this time in his individual capacity. Freshman again argued that he did not own or control the property when Plaintiff’s injuries occurred. The Court denied the motion on March 27, 2024, finding that there were triable issues of fact that Freshman controlled the Property during the times when Plaintiff’s injuries occurred, and that Freshman had failed to meet his initial burden to show that he did not control the Property.

On December 22, 2023, Freshman moved for summary judgment a third time, this time only in his capacity as a trustee (the “December 22 Motion”). This is the motion that is now before the Court. Plaintiff filed an opposition and Freshman filed a reply.

Evidentiary Objections

The Court overrules the Freshman’s evidentiary objections without prejudice to his ability to raise them at trial.

The Court overrules the parties’ evidentiary objections appearing in their separate statements, which is not the proper place for them.

Requests for Judicial Notice

The Court grants Freshman’s requests for judicial notice.

Legal Standard

Motion for Reconsideration

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. (Code Civ. Proc., § 1008, subd. (a).)

Renewed Motion

A party who originally made an application for an order which was refused in whole or 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 ex parte motion. (Code Civ. Proc., § 1008, subd. (b).)

For renewed motion purposes, a moving party must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time. (See California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 46-48 (Virga) [affirming trial court order denying what amounted to a renewed motion for attorney fees “in the absence of a sufficient explanation why appellants did not rely on the federal statute [new law] in their original motion”].)

A renewed motion can only be brought by the party whose original motion was denied in whole or in part, has no time limit for filing, and need not be considered by the same judge who denied the original motion. (Deauville Restaurant, Inc. v. Superior Court (2001) 90 Cal.App.4th 843, 851.) However, statutory or jurisdictional deadlines attached to the underlying motions remain applicable. (See, e.g., Kunysz v. Sandler (2007) 146 Cal.App.4th 1540, 1543 [motion to renew an anti-SLAPP motion, brought nine months after the first amended complaint was filed, was untimely because it was outside the 60-day statutory period for filing an anti-SLAPP motion].)

Court’s Inherent Powers to Reconsider Prior Orders

The Court has statutory authority to reconsider final orders and interim orders based on a change in law. (Civ. Proc., § 1008, subds. (c), (e).)

Further, California courts have a broader constitutional authority that goes beyond Code of Civil Procedure section 1008 to reconsider interim orders that are erroneous. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1248 [courts have constitutional authority to reconsider interim orders]; Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 [“If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief”].)

Case law suggests that while California courts generally do not possess a constitutional authority to reconsider erroneous final orders, a court may correct an error in legal reasoning as to a final order subject to appeal but before the time to appeal has expired. (See e.g., In re Marriage of Spector (2018) 24 Cal.App.5th 201, 215; In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1312-1313 & 1313, fn. 9.)

California courts have interpreted summary judgment or adjudication orders as interim rather than final orders. (Le Francois, supra, 35 Cal.4th pp. 1104-1105 [Trial court may sua sponte reconsider a prior interim order on a motion for summary judgment even if outside the time permitted for a party to move for reconsideration].)

Discussion

Freshman, for the second time in his capacity as trustee and for the third time overall, argues that he is entitled to summary judgment because he did not control the Property when Plaintiff’s injuries occurred.

            The Court rejected each of Freshman’s arguments here in its ruling on the January 23 Motion which, just like this motion, moved for summary judgment as to Freshman in his capacity as trustee. Freshman does not present law or facts warranting a motion for reconsideration or renewed motion. Nor does it appear that he could do so – Freshman bases his motion on the contention that the Trust has not had an ownership interest in the Property since 2012 (an argument that he also raised in the January 23 Motion, in any event).

            The Court does not see any reason to reconsider its ruling sua sponte, either. Plaintiff has provided evidence that the Trust is the sole member of 404 Maple, the LLC which owned the Property for most of Plaintiff’s tenancy. Thus, the evidence presents a triable issue of fact that the Trust exercised control over the Property.

            The Court therefor denies Freshman’s motion.