Judge Keri G. Katz, Case 37-2021-00046405-CU-BC-CTL 2024-03-01 Tentative Ruling

Judge: Keri G. Katz, Case: 37-2021-00046405-CU-BC-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 29, 2024

03/01/2024 08:30:00 AM C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00046405-CU-BC-CTL CHDS INC VS BLUE PACIFIC ENGINEERING CONSTRUCTION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Plaintiff/Petitioner C.H.D.S., Inc. dba Curtis Drilling Co.'s motion for reconsideration of this courts' December 22, 2023, order denying Plaintiff's petition for order correcting arbitration award is DENIED.

Plaintiff's moving papers state that Plaintiff brings this motion under CCP § 1008(a). Pursuant to this section: (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 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.

As New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206 explains, Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689, 68 Cal.Rptr.2d 228.) . . . .

The burden under section 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. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198, 69 Cal.Rptr.2d 592.) New York Times, 135 Cal.App.4th at 212-213.

The 'new' evidence Plaintiff identifies is 1) a June 10, 2023, email correspondence from the arbitrator to counsel and, 2) Blue Pacific's motion to compel arbitration, filed in this court on December 30, 2021 [ROA 18-22]. Plaintiff offers no explanation as to why Plaintiff did not offer Blue Pacific's motion to compel arbitration as evidence on Blue Pacific's petition. As to the June 10, 2023, email correspondence, Plaintiff submits the Declaration of Davide Golia who states: 6. . . . . After receiving the Court's tentative ruling on December 21, 2023, Plaintiff's co-counsel, appearing virtually, prepared a copy of the June 10, 2023, correspondence to present to the Court but Calendar No.: Event ID: TENTATIVE RULINGS

3086912 10 CASE NUMBER: CASE TITLE: CHDS INC VS BLUE PACIFIC ENGINEERING CONSTRUCTION 37-2021-00046405-CU-BC-CTL did not have an opportunity to speak at the hearing. Although Plaintiff and its counsel acted with reasonable diligence, given the time limitation at the hearing, Plaintiff was unable to provide the evidence to the Court for its consideration. . . .

The court finds such evidence insufficient to meet the 'satisfactory explanation' requirements of New York Times. It is undisputed that the June 10, 2023, email correspondence was available to Plaintiff's counsel prior to the hearing on Blue Pacific's petition to confirm arbitration award. It is also undisputed that Plaintiff's counsel, attorney Davide Golia, appeared in person at the hearing on this motion and was afforded the opportunity to present argument on behalf of Plaintiff to the court. In this circumstance, evidence that co-counsel did not have an opportunity to speak at the hearing is insufficient to establish that Plaintiff could not, with reasonable diligence, have discovered or produced the June 10, 2023, email correspondence prior to or at the time of hearing on Blue Pacific's petition. New York Times addresses a similar issue.

The Cerullo and Nelson deposition testimony does not constitute new or different facts within the meaning of section 1008. Although the evidence was new to the trial court, it was available to WSN throughout the discovery process and was easily obtainable, as demonstrated by the April 1 depositions.

WSN (and certainly C2B), were or should have been aware of the details about the online ad campaign from its inception. WSN failed to include any of this information in its opposition to the summary judgment motion, or even mention it to the court until the end of the hearing, when it appeared that the court would rule against it. This evidence was not the type of 'new or different facts, circumstances, or law' that would justify reconsideration. (See Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 692, 76 Cal.Rptr.2d 516 [plaintiff's belief that certain evidence was not necessary at hearing on summary judgment motion insufficient to justify reconsideration], disapproved on another ground in Navellier v. Sletten (2002) 29 Cal.4th 82, 124 Cal.Rptr.2d 530, 52 P.3d 703.) New York Times, 135 Cal.App.4th at 213. See also, People v. Safety Nat. Cas. Corp. (2010) 186 Cal.App.4th 959, 974 ['[f]acts of which a party seeking reconsideration was aware at the time of the original ruling are not 'new or different facts,' as would support a trial court's grant of reconsideration'].

The court is not persuaded by Plaintiff's reliance on McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252 and Glade v. Glade (1995) 38 Cal.App.4th 1441. McPherson supports Blue Pacific as it allows for the exclusion of a declaration available to the moving party prior to the hearing on the underlying motion. McPherson, 78 Cal.App.4th at 1265-1266. Glade is distinguishable because, and significantly, the evidence was that the trial court did not permit counsel to speak at the hearing on the underlying motion. Glade, 38 Cal.App.4th at 1457. There is no similar evidence before the court on this motion. While Plaintiff also argues 'new' law, all of the authorities cited by Plaintiff pre-date both the filing of and the hearing on Blue Pacific's petition. Absent establishing new or different facts, circumstances or law, this court is without jurisdiction of afford Plaintiff the relief Plaintiff seeks on this motion. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1502.

To the extent Plaintiff seeks relief pursuant to the court's inherent authority to reconsider prior orders [Le Francois v. Goel (2005) 35 Cal.4th 1094], Plaintiff's motion is also DENIED. None of the arguments Plaintiff raises persuades the court to reconsider its prior ruling. Therefore, the court exercises its discretion against reconsideration of the court's December 22, 2023, order.

Even if the court were to reconsider its December 22, 2023, order, the result would not change. The 'preliminary tentative conclusions' set forth by the arbitrator in the June 10, 2023, email were superseded by the arbitrator's Final Award. Plaintiff fails to establish how Blue Pacific's motion to compel arbitration changes the analysis set forth in this court's December 22, 2023, order which is based on the claims Plaintiff pursued against Blue Pacific at arbitration. The law Plaintiff relies on was either considered by the court in its prior order, or does not require a different result in this case. Any issues relating to res judicata/collateral estoppel may be addressed in the context of Plaintiff's prosecution of its claims against the sureties.

The court sets the following dates for trial of Plaintiff's remaining claims: First Expert Exchange March 8, 2024 Calendar No.: Event ID: TENTATIVE RULINGS

3086912 10 CASE NUMBER: CASE TITLE: CHDS INC VS BLUE PACIFIC ENGINEERING CONSTRUCTION 37-2021-00046405-CU-BC-CTL Second Expert Exchange March 22, 2024 Motion/Discovery Cut Off May 3, 2024 Trial Readiness Conference May 10, 2024 at 1:30pm Trial June 7, 2024 at 1:30pm If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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