Judge Kerry Bensinger, Case Number: 21STCV27613, Date: 2023-12-05 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 July 28, 2021, Plaintiff, Jeff Baoliang Zhang, Ph.D., who is self-represented, filed this action against the City of Los Angeles (sued as the “Los Angeles Police Department”). On January 5, 2023, Plaintiff filed the operative First Amended Complaint (“FAC”). The FAC alleges the following causes of action: (1) Willful Perjuries, the Serious Violation of the Federal Laws; (2) Violation of the United States Constitution; (3) Theft and Robbery of Plaintiff’s Property; and (4) Elder Abuse.¿ The FAC also adds Kenneth Bryant (“Bryant”), Jesse Hinchman (“Hinchman”), Albert Delarocha, Charlie Beck, and Michel Moore (“Moore”) as defendants.

On December 5, 2023, the Court denied Plaintiff’s motion. Defendants, City of Los Angeles, Bryant, Hinchman, and Moore, served Plaintiff a Notice of Ruling on December 7, 2023.

On December 18, 2023, Plaintiff filed this motion for reconsideration of the Court’s December 5, 2023 ruling.

“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.)

Here, Plaintiff brings this motion pursuant to Section 1008, subdivision (a). Plaintiff was served by electronic service with notice of the Court’s ruling on December 7, 2023. Electronic service extends the time period to bring this motion by two court days. (Code Civ. Proc. § 1010.6, subd. (a)(3)(B).) As such, Plaintiff had until December 19, 2023 to file this motion. Plaintiff filed motion on December 18, 2023. The motion is timely.

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

Plaintiff brings this motion seeking reconsideration of the Court’s December 5, 2023 ruling denying Plaintiff’s motion for a trial schedule. The motion lacks merit. Plaintiff repeats the same arguments and factual background as appeared in his motion for a trial schedule. Plaintiff does not identify what new or different facts, circumstances, or law that compel reconsideration of the December 5, 2023 ruling. As the Court stated in that ruling, “there is no statute authorizing or otherwise recognizing a motion for a trial schedule. A case management conference or trial setting conference are the proper vehicles to address Plaintiff’s request [for a trial schedule].” (12/5/23 Minute Order.) The law remains unchanged on this point.

Kerry Bensinger

Judge of the Superior Court

[1] Defendants argue Plaintiff’s motion should be denied as untimely. All moving and supporting papers shall be served and filed at least 16 court days before the hearing. (Code Civ. Proc. § 1005, subd. (b).) Here, Plaintiff served and filed this motion only 14 court days before the hearing. However, given that Defendants filed an opposition responding to the merits of the motion, Defendants cannot show having been prejudiced by the untimely filing. As such, the Court considers the merits of the motion.