Judge: Kerry Bensinger, Case: 20STCV49568, Date: 2023-04-27 Tentative Ruling

Case Number: 20STCV49568    Hearing Date: April 27, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On December 29, 2020, plaintiff Kimberly White (“Plaintiff”) filed this action against defendant American Multi-Cinema, Inc. (“Defendant”) alleging causes of action for general negligence and premises liability. Plaintiff alleges that on March 11, 2020, she tripped and fell due to an unmarked dark colored handrail in a movie theater.

On September 29, 2022, Defendant filed a motion for summary judgment.  The motion was heard and argued on December 14, 2022.  The Court denied Defendant’s motion, stating Defendant had not shifted the burden to Plaintiff show a triable issue of fact.  Specifically, the Court sustained Plaintiff’s objection to Defendant’s photographs depicting the subject movie theater based on lack of foundation.  Without the photographs, the Court stated that Defendant had not submitted any evidence to show that the alleged defect was trivial.  The Court adopted its tentative ruling as the order of the Court. 

On March 30, 2023, Defendant filed this motion for an order granting renewal of Defendant’s prior Motion for Summary Judgment, or, in the alternative, Summary Adjudication and granting summary judgment or summary adjudication as to Plaintiff’s negligence-based causes of action.  Defendant alternatively requests that the Court reconsider its previous ruling sua sponte.

Plaintiff opposes.

II.      LEGAL STANDARD

“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.)

III.     ANALYSIS

Defendant argues that Plaintiff’s assertion of a new theory when opposing Defendant’s summary judgment motion is a new or different circumstance that supports renewal of their summary judgment motion.  Specifically, Plaintiff asserted for the first time in opposing Defendant’s summary judgment motion that Defendant remodeled the subject movie theater sometime after her claimed incident.  (Mendoza Decl., ¶ 5.)  Defendant further represents that the renewal motion is based on the deposition of Kelsey White and the declaration of Defendant’s retained expert Brad Rutledge. 

However, as pointed out by Plaintiff, Defendant submits the same arguments that the Court considered when denying Defendant’s motion for summary judgment.  Nor does Defendant address the basis for the Court’s order.  Namely, Defendant failed to meet its initial burden on summary judgment because Defendant did not submit admissible evidence showing that no dangerous condition existed at the time of the alleged incident.  Defendant does not point to any new facts, circumstances, or law that undermines the basis for the Court’s denial of Defendant’s prior motion for summary judgment. 

IV.     CONCLUSION

Accordingly, Defendant’s motion for renewal is DENIED. 

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.

Dated this 27th day of April 2023