Judge Kerry Bensinger, Case Number: 23STCV14971, Date: 2024-11-20 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.

This is a partition action concerning the real property located at 1114, 1114 ½, and 1116 S. Kern Ave., Los Angeles, CA 90022 (the “Subject Property”). On June 27, 2022, Plaintiff Steve K. Lopez (“Plaintiff” or “Lopez”) filed a Verified Complaint for Partition By Sale of Real Property against Defendant Mai Thai (“Defendant” or “Thai”)¹. Plaintiff alleges that he and Defendant are joint tenants with equal 50% ownership interest in the Subject Property. The grant deed evidencing the parties’ equal ownership of Subject Property as joint tenants is attached as Exhibit B to the Verified Complaint. Defendant is self-represented.

On March 25, 2024, Plaintiff filed a motion for interlocutory judgment of partition on the pleadings and for appointment of a referee. The court granted the motion on May 6, 2024. Pursuant to the court’s order, Matthew Taylor was appointed as the referee to determine the method of partition.

On June 26, 2024, Mr. Taylor filed a report recommending partition by sale of the property. On August 29, 2024, the court adopted Mr. Taylor’s recommendation over Defendant’s objections.

Defendant appears to seek reconsideration of the court’s August 29, 2024, order adopting court-appointed referee Matthew Taylor’s recommending partition by sale of the Property. “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.)

Here, Defendant’s motion is procedurally defective. The motion is brought under Code of Civil Procedure section 1008, subdivision (a). Defendant therefore had 10 days after service of written notice of entry of the court’s August 29, 2024, order to file this motion. Plaintiff served Defendant with notice of that order on August 30, 2024. More than 10 days have passed. The failure to timely file the motion for reconsideration is grounds alone to deny the motion. (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)

Defendant’s motion is also substantively defective. Defendant does not present new or different facts, circumstances, or law that warrants reconsideration of the court’s August 29, 2024, order.

Kerry Bensinger

Judge of the Superior Court