Judge: Katherine Chilton, Case: 21STLC07186, Date: 2022-10-05 Tentative Ruling

Case Number: 21STLC07186    Hearing Date: October 5, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR RECONSIDERATION OF DENIED MOTION

                                    TO RECLASSIFY ACTION TO UNLIMITED JURISDICTION

MOVING PARTY:   Plaintiff Michael Steven Gola

RESP. PARTY:         None

MOTION FOR RECONSIDERATION

(CCP §§ 1008, 403.040)

TENTATIVE RULING:

Plaintiff Michael Steven Gola’s Motion For Reconsideration of Denied Motion to Reclassify Action to Unlimited Jurisdiction is DENIED.

SERVICE: 

[   ] Proof of Service Timely Filed (CRC, rule 3.1300)                 OK

[   ] Correct Address (CCP §§ 1013, 1013a)                                                 OK

[   ] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     OK

OPPOSITION: filed 9/27/22                                                            [   ] Late                      [  ] None

REPLY:         none filed                                                                    [   ] Late                      [X] None

ANALYSIS:

I.                Background

On October 1, 2021, Plaintiff Michael Steven Gola (“Plaintiff”) filed an action stemming from a car accident between Plaintiff and Defendant David Pappalardo (“Defendant”).  On December 15, 2021, Defendant filed an answer.

On April 19, 2022, Plaintiff filed a Motion to Reclassify.  On July 12, 2022, the Court denied Plaintiff’s Motion to Reclassify, finding that Plaintiff had not met his burden to show that the case was incorrectly classified.  (07/12/22 Minute Order. 

On July 21, 2022, Plaintiff timely filed this Motion for Reconsideration.  Defendant filed an opposition on September 27, 2022.  No reply has been filed.

II.              Legal Standard

Code of Civil Procedure § 1008 provides, in pertinent part:

“(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 an 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.

(b) A party who originally made an application for an order which was refused in whole or in 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 an ex parte motion.

…

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

(Code Civ. Proc. § 1008(a), (b), (e).)

A motion for reconsideration under § 1008 requires that the moving party present new or different facts that were not previously considered by the Court.  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.)  However, the burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”  (Ibid.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that § 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].)  Reconsideration cannot be granted based on claims that the court misinterpreted the law in its initial ruling because this is not a "new" or "different" matter.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Code of Civil Procedure § 403.040 allows a plaintiff to file a motion for reclassification of an action within the time allowed for that party to amend the initial pleading.  (Code Civ. Proc., § 403.040(a).)  “A party may amend its pleading once without leave of court at any time before an answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer to motion to strike.  (Code Civ. Proc. § 472(a).)  If the motion is made after the time for the plaintiff to amend the pleading, the motion may only be granted if (1) the case is incorrectly classified; and (2) the plaintiff shows good cause for not seeking reclassification earlier.  (Code Civ. Proc. § 403.040(b).)

In Walker v. Superior Court, the California Supreme Court held that a matter may be reclassified from unlimited to limited only if it appears to a legal certainty that the plaintiff’s damages will necessarily be less than $25,000.  (Walker v. Superior Court (1991) 53 Cal.3d 257, 262.)  If there is a possibility that the damages will exceed $25,000.00, the case cannot be transferred to limited.  (Ibid.)  This high standard is appropriate in light of “the circumscribed procedures and recovery available in the limited civil courts.”  (Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 278.)

In Ytuarte, the Court of Appeal examined the principles it set forth in Walker and held that “the court should reject the plaintiff’s effort to reclassify the action as unlimited only when the lack of jurisdiction as an ‘unlimited’ case is certain and clear.”  (Ytuarte, supra, 129 Cal.App.4th at 279 (emphasis added).)  Nevertheless, the plaintiff must present evidence to demonstrate a possibility that the damages will exceed $25,000.00 and the trial court must review the record to determine “whether a judgment in excess of $25,000.00 is obtainable.”  (Ibid.)

III.            Discussion

Plaintiff has sought to reclassify this action as an unlimited civil action on grounds that Plaintiff’s medical expenses, incurred to treat the injuries he sustained in this collision, are believed to exceed $25,000.”  (Mot. p. 4-5, Berriz Decl. ¶ 11.)  As noted above, Plaintiff’s original motion to reclassify was denied so Plaintiff must present new or different facts and explain why these facts were not presented earlier.

Plaintiff alleges that, when the Complaint was initially filed on October 1, 2021, “plaintiff’s known medical expenses were mistakenly believed to be limited, under $5,000” even though Plaintiff allegedly had already incurred physical therapy bills of $4,900.00 from California Hand Therapy by the end of December 2020 and a bill for $2,300.00 from Meier Orthopedic Medicine no later than February 5, 2021 for services rendered as of the end of December 2020.   (Berriz Decl., ¶ 6, Exhibits attached).  Plaintiff contends that, following the filing of the lawsuit on October 1, 2021, his “injuries continued to cause pain and limitation and plaintiff sought and received additional, extensive medical care, including extensive pain management injections into his spine” and thus, Plaintiff expects to continue to incur additional medical and non-medical expenses that will exceed $25,000.  (Ibid. ¶ 7.)

As evidence, Plaintiff’s counsel declares that “[o]n October 12, 2022, plaintiff underwent an initial orthopedic evaluation by Dr. Steven W. Meier who ordered additional physical therapy.”  (Berriz Decl. ¶ 7). This must be a typographical error because counsel’s declaration is signed on July 21, 2022, before the date that Dr. Meier allegedly ordered additional physical therapy. If the date is a typographical error and counsel intended to type October 12, 2021, then this is not a new fact. 

In the Motion to Reclassify, Plaintiff’s counsel’s declaration stated (without evidentiary support but under oath) that the total invoices for California Hand Therapy were $2,935.00.  This time, Plaintiff’s counsel’s declaration states that the total is $4,900.00.  There is no billing after December 23, 2020 from California Hand Therapy so the Court questions why the totals are different, since California Hand Therapy has not done any therapy for Plaintiff since long prior to the Motion to Reclassify.

Another group of documents attached to Plaintiff’s counsel’s declaration is a stack of therapy reports from California Rehabilitation and Sports Therapy.  In addition to not being authenticated, the Court cannot discern what the total is for services provided by California Rehabilitation and Sports Therapy. 

Another group of reports is from Dr. Todd Molnar.  Although Plaintiff’s counsel states that Dr. Molnar had invoices totaling $1,954.17, the Court cannot locate those totals.  Also, all of the reports are from 2021, meaning that these are not new facts nor is there an explanation why the facts were not presented with the Motion to Reclassify.  

Finally, Plaintiff’s counsel claims that “future medical care” will total $20,000.  While a doctor may have recommended a treatment and estimated the cost, until such costs are incurred, they are speculative.  With regard to Southern California Orthopedic Institute, no actual invoices have been submitted to support these numbers. 

Defendant argues that Plaintiff has not presented new or different facts, circumstances, or law to permit the Court to reconsider its prior order.  For example, Defendant cites to the Dr. Meier report, which was produced by Plaintiff prior to the Motion to Reclassify, so it is not “new.”  (Opp., at pp. 3-4). Defendant further argues that Plaintiff has not explained his delay in seeking reclassification since he seems to have finished treating within a short time after he filed his complaint.  Plaintiff waited until discovery had been exchanged and his deposition had been taken to file for reclassification.  Finally, Defendant argues that Plaintiff’s discovery responses show his medical specials to be $13,853.00 without considering Howell reductions.  (Id., Markarian Decl., ¶ 3, Exh. A).

The burden is on the Plaintiff to show that the case is incorrectly classified and that there is good cause for not seeking reclassification earlier.  Plaintiff still has not made a showing of actual medical expenses incurred that would cause the Court to find that a judgment in excess of $25,000.00 is obtainable.  (Ytuarte, supra, 129 Cal.App.4th at 279 (emphasis added).)  Moreover, Plaintiff has failed to explain why he did not seek reclassification earlier, given the timing of his medical services.

Since Plaintiff has not met his burden to provide new or different facts, circumstances, or law, nor has he “show[n] diligence with a satisfactory explanation for not presenting the new or different information earlier, the Court DENIES Plaintiff’s Motion for Reconsideration.

IV.           Conclusion & Order

For the foregoing reasons, the Motion for Reconsideration of Denied Motion to Reclassify Action to Unlimited Jurisdiction is DENIED.

Moving party is ordered to give notice.