Judge Kerry Bensinger, Case Number: 19STCV45414, Date: 2023-12-15 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

On December 16, 2019, Plaintiff, Gregory Langadinos,[1]who is self-represented, filed a form complaint against Defendants, Ronald S. MacDonald (“MacDonald”) and Monica K. Kramer (“Kramer”), asserting a cause of action for motor vehicle negligence. Kramer was dismissed from this action on May 11, 2021.

On February 24, 2023, Plaintiff filed a motion for leave to file a First Amended Complaint (“FAC”) to add new defendants and causes of action. On October 2, 2023, after taking the matter under submission, the Court denied the motion for leave to amend because of substantive and procedural defects.

On October 16, 2023, Plaintiff filed this motion for reconsideration pursuant to Code of Civil Procedure[2] section 1008, subdivision (b).[3] [4]

On November 21, 2023, Defendants filed an opposition. Defendants request sanctions.

“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).) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.]”¿ (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)¿¿A motion for reconsideration is properly denied where it is based on evidence that could have been presented in connection with the original motion. (Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452, 1460.)

“The statutory provisions relating to motions for renewal (i.e., subsequent applications for the same order) are found in section 1008, subdivision (b).” (Graham v. Hansen (1982) 128 Cal.App.3d 965, 970.) “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.” (Code Civ. Proc. § 1008, subd. (b).) “These provisions contain no requirement that a motion for renewal be made within the 10-day time period as is required for motions for reconsideration.” (Graham, supra, 128 Cal.App.3d at p. 970.)

“The statutory provisions relating to motions for renewal (i.e., subsequent applications for the same order) are found in section 1008, subdivision (b).” (Graham, supra, 128 Cal.App.3d at p. 970.) “These provisions contain no requirement that a motion for renewal be made within the 10-day time period as is required for motions for reconsideration.” (Id.)

Plaintiff brings this motion for pursuant to Section 1008, subdivision (b). Accordingly, the Court construes this motion as a motion for renewal. As a renewed motion, Plaintiff’s motion is timely.

“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.” (Code Civ. Proc. § 1008, subd. (b), emphasis added.)

Plaintiff brings this renewed motion for leave to file an amended complaint. As best as the Court can tell, Plaintiff seeks reconsideration for the following reasons:

2. This Court violated the Judicial Code of Conduct by (1) allowing a judicial assistant to write and research the October 2, 2023 order in an effort to conserve judicial resources, (2) failing to apply a liberal standard for pro se pleadings in denying Plaintiff leave to amend, and (3) adopting an order that is biased and discriminates against Plaintiff as a disabled person.

Plaintiff ‘s arguments lack merit. None of the foregoing reasons are “new or different facts, circumstances, or law” as required by Section 1008, subdivision (b). “A motion made in accordance with section 1008 must include reference to new or different facts, circumstances, or law before the earlier order may be reconsidered.” (In re Marriage of Oropallo (1998) 68 Cal.App.4th 997, 1002.) Plaintiff does not explain what “erroneous facts” are at issue. Or how they are relevant to the Court’s consideration of the renewal motion.

Moreover, the Court is cognizant that leave to amend is liberally granted. As stated in the Court’s October 2, 2023 order, “[t]he liberal policy of granting leave to amend at any stage of the proceedings applies only where no prejudice is shown to the adverse party. (Melican, supra, 151 Cal.App.4th at p. 175.).” The Court considered Plaintiff’s arguments and expressly found that the prejudice to Defendants would be extreme if leave were granted.

Last, Plaintiff again invokes Section 473 to seek relief from the October 2, 2023 order. The arguments are not new. They were raised and rejected previously. A key aspect of the discretionary relief provision of Section 473 is the determination of prejudice to the opposing party. (Zamora v. Calyborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258.) As mentioned above, the Court found that Defendants would be prejudiced by the proposed amendments. The Court also found that Plaintiff did not explain the delay in seeking leave to amend.

The Court considered the evidence and the arguments Plaintiff presented in connection to his motion for leave to amend. The Court issued its ruling denying the motion.[5] Plaintiff fails to present new or different facts, circumstances, or law warranting a different result pursuant to section 1008(b).

Accordingly, Plaintiff’s motion, construed as a motion for renewal, is DENIED.

[1] Plaintiff, in pro per, filed a notice of association of counsel on March 17, 2023.

[2] Unless otherwise stated, all statutory references hereinafter are to the Code of Civil Procedure.

[3] Plaintiff requests that a different judge other than Judge Bensinger rule on this motion. Plaintiff argues that, while a motion for reconsideration under Section 1008, subdivision (a) requires that the same judge to rule on the motion, a motion made pursuant to Section 1008, subdivision (b) mandates that a different judge hear this motion. Plaintiff is correct that Section 1008, subdivision (b) does not contain a like “same judge” requirement. As noted by the Court of Appeal in Deauville Restaurant, Inc. v. Superior Court (2001) 90 Cal.App.4th 843, 850, “[w]hile section 1008, subdivision (a) expressly requires the same judge hear a motion for reconsideration, subdivision (b) conspicuously omits the ‘same judge’ requirement.” However, neither the plain words of Section 1008, subdivision (b) nor in any part of the Deauville Restaurant opinion is it stated that a different judge must hear the renewed motion or that the party may request another judge to hear the motion. Accordingly, Plaintiff’s request is denied.

[4] Plaintiff also requests 45 minutes as a reasonable accommodation to address the Court. Plaintiff does not show he is entitled to this accommodation. California Rules of Court, rule 1.100 sets forth the procedure for requesting a reasonable accommodation. Rule 1.100 states:

The process for requesting accommodations is as follows:

(1) Requests for accommodations under this rule may be presented ex parte on a form approved by the Judicial Council, in another written format, or orally. Requests must be forwarded to the ADA coordinator, also known as the access coordinator, or designee, within the time frame provided in (c)(3).

(2) Requests for accommodations must include a description of the accommodation sought, along with a statement of the medical condition that necessitates the accommodation. The court, in its discretion, may require the applicant to provide additional information about the medical condition.

(3) Requests for accommodations must be made as far in advance as possible, and in any event must be made no fewer than 5 court days before the requested implementation date. The court may, in its discretion, waive this requirement.

(4) The court must keep confidential all information of the applicant concerning the request for accommodation, unless confidentiality is waived in writing by the applicant or disclosure is required by law. The applicant's identity and confidential information may not be disclosed to the public or to persons other than those involved in the accommodation process. Confidential information includes all medical information pertaining to the applicant, and all oral or written communication from the applicant concerning the request for accommodation.

Here, Plaintiff merely states that he is disabled. Plaintiff does not provide a statement of the medical condition that necessitates the accommodation. Plaintiff presented his arguments ably before without a need for accommodation. Nothing is presented herein that warrants an accommodation. Instead, Plaintiff seeks additional time to argue his case, not that any identifiable disability necessitates more time to present the argument. As such, the Court will hear from the parties to the extent necessary for the disposition of the motion.

[5] Indeed, the assertion that the Court’s October 2, 2023, Order was “ghostwritten and researched by judicial assistant Araxi Gindzhkan” is unsupported and false. Ms. Gindzhkan is the courtroom judicial assistant.