Judge: Latrice A. G. Byrdsong, Case: 20STLC03019, Date: 2023-10-03 Tentative Ruling

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Case Number: 20STLC03019    Hearing Date: January 16, 2024    Dept: 25

Hearing Date:                         Tuesday, January 16, 2024

Case Name:                             MANHATTAN FLOOR COVERING, INC. dba SERVPRO OF REDONDO BEACH v. MAUREEN MCCOOL, and DOES 1 to 10, inclusive.

                                                (Cross-Complaint) MAUREEN MCCOOL v. INTERINSURANCE EXCHANGE OF THE AUTOMOBILE CLUB, MANHATTAN FLOOR COVERING, INC. DBA SERVPRO OF REDONDO BEACH and ROES 1 to 10

Case No.:                                20STLC03019

Motion:                                   Motion for Reconsideration of the Denial of December 5, 2023, Ex Parte Applications for an Order Entering Default Against Cross-Defendant and Continuing Trial and Re-Opening Discovery

Moving Party:                         Defendant/ Cross-Complainant Maureen McCool  

Responding Party:                   Cross-Defendant Manhattan Floor Covering, Inc.

Notice:                                    OK

Tentative Ruling:                    Defendant/Cross-Complainant Maureen McCool’s Motion for Reconsideration of December 5, 2023, Ex Parte Applicaitons for an Order Entering Default Against Cross-Defendant and Continuing Trial and Re-Opening Discovery is DENIED in so far as the Court lacks jurisdiction over the motion.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      OK

[X] Correct Address (CCP §§ 1013, 1013a)                                      OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       OK 

OPPOSITION:          Filed as of January 02, 2024               [   ] Late          [X] None 

REPLY:                     Filed as of January 08, 2024               [   ] Late          [X] None 

BACKGROUND

On April 3, 2020, Plaintiff Manhattan Floor Covering, Inc. dba Servpro of Redondo Beach (“Plaintiff”) filed this action against Defendants Maureen McCool (“McCool”) and Does 1 to 10 for (1) breach of contract, (2) open book account, and (3) account stated.

The Complaint alleges the following. Plaintiff is a California corporation. On March 21, 2019, Plaintiff and the defendants entered into a written agreement whereby Plaintiff agreed to provide services (does not specify what services) for the defendants. On May 2, 2019, McCool breached the agreement by failing to pay the outstanding $11,604.38. Therefore, Plaintiff demands that amount as damages and prejudgment interest of 1.5 percent per month from May 2, 2019.

On April 22, 2021, McCool filed a Cross-Complaint against Interinsurance Exchange of the Automobile Club, Plaintiff, and Does 1 to 10, for (1) breach of written contract, (2) breach of the implied covenant of good faith and fair dealing, (3) conversion, (4) negligence, and (5) negligent hiring, retention, and supervision.

On March 23, 2023, McCool filed a First Amended Cross-Complaint (“FACC”) against Plaintiff, Interinsurance Exchange of the Automobile Club, The Bucklin Law Firm, and Does 2 to 10, asserting causes of action for (1) breach of written contract, (2) breach of implied covenant of good faith and fair dealing, (3) violation of insurance code section 2071 and Civil Code section 3294 bad faith, (4) conversion, (5) negligence, (6) negligent hiring, retention, and supervision, (7) fraud/false advertising, and (8) legal malpractice.

On May 19, 2023, the Interinsurance Exchange of the Automobile Club filed a Cross-Complaint for Breach of Contract (Settlement Agreement) against McCool and Moes 1-10.

On June 2, 2023, the Interinsurance Exchange of the Automobile Club filed a First Amended Cross-Complaint for Breach of Contract (Settlement Agreement) against McCool and Moes 1-10.

On September 5, 2023, McCool filed a Motion for Leave to a Second Amended Cross-Complaint (“SACC”).

On October 9, 2023, Plaintiff filed a document titled “Plaintiff’s Objections to, Response to, and Opposition to Cross-Complainant McCool’s Motion to File a Second Amended Cross-Complaint.”

On October 10, 2023, Plaintiff, as a cross-defendant, filed a document titled in part “Cross-Defendant Manhattan Floor Covering, Inc. d/b/a Servpro of Redondo Beach/Manhattan Beach and Servpro of Carson/West Carson’s Opposition to Cross-Complainant Maureen McCool’s Motion for Leave to File a Second Amended Cross-Complainant ….”

On October 16, 2023, McCool filed a document titled in part “Reply to Opposition of Cross-Defendant Servpro to Motion for Leave to File [Proposed] Second Amended Cross-Complaint; Request that the Court Abide by the Supreme Court Mandate that Unethical Attorney be Reported ….”

On October 16, 2023, McCool also filed a document titled in part “Reply to Opposition of Plaintiff Manhattan Floor Covering to Motion for Leave to File [Proposed] Second Amended Cross-Complaint; Request that the Court Abide by the Supreme Court Mandate that Unethical Attorney be Reported ….”

On November 08, 2023, McCool filed a document titled “Motion for Leave to file a revised First Amended Complaint, to Add in New Cross-Defendants; Causes of Action Against Current Cross-Defendants and to Allege Punitive Damages Against All Cross Defendants.”

On November 17, 2023, McCool filed an Ex Parte Application for an Order Continuing or taking Trial Date off Calander. The Court rejected the application on November 20, 2023, on the grounds of improper notice and Failure to Comply with the Limited Jurisdictions’ Third Amended Standing Order.

On November 21, 2023, McCool filed an Ex Parte Application for an Order Re-Opening Discovery. Plaintiff filed its opposition on November 22, 2023. On November 27, 2023, the Court denied McCool’s Ex Parte Application, noting that McCool failed to make an affirmative factual showing of irreparable harm, immediate danger or any other basis in which relief may be granted under CRC 3.1202.

On December 01, 2023, McCool filed an Ex Parte Application for an Order Re-Opening Discovery. Plaintiff filed its opposition on December 04, 2023. On December 05, 2023, the Court denied McCool’s Ex Parte Application, noting that McCool failed to make an affirmative factual showing of irreparable harm, immediate danger or any other basis in which relief may be granted under CRC 3.1202.

On December 08, 2023, McCool filed the instant Motion for Reconsideration of the Denial of the December 05, 2023, Ex-Parte Applications for an Order Entering Default Against Cross Defendant and Re: Continuing Trial and reopening Discovery. Plaintiff writes in opposition. McCool writes in reply.

MOVING PARTY POSITION

            Defendant/Cross-Complainant McCool prays for the Court to reconsider its prior order denying McCool Ex Parte Application under CCP § 1008. McCool argues that the Court should reconsider its December 05, 2023, Order denying her Ex Parte Application as the Court’s ruling incomplete as it fails to clarify the grounds for denying McCool’s Ex Parte application. Moreover, McCool requests a ruling that Default be entered and counsel for the Cross-Defendant be barred from making any appearances or submitting any filing until the October 23, 2023, Court order is complied with.

OPPOSITION

            In opposition, Cross-Defendant asserts that there is no basis for reconsideration to be granted because McCool does not provide new or different facts, circumstances, or law that satisfies the requirements under CCP § 1008, instead McCool simply asks for a mulligan for her Ex Parte application and have the Court reconsider the Clerk’s refusal to enter default against Cross-Defendant and Plaintiff.

REPLY

            In reply, McCool argues that her motion does comply with CCP § 1008 and further that her Ex Parte Application did comply with CRC rule 3.1202(c).

ANALYSIS

I.          Legal Standard

 Code of Civil Procedure § 1008 provides, in pertinent part: 

“(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 an 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. 

(b) A party who originally made an application for an order which was refused in whole or in 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion. 

… 

(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” 

(Code Civ. Proc. § 1008(a), (b), (e).) 

A motion for reconsideration under § 1008 requires that the moving party present new or different facts that were not previously considered by the Court.  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.)  However, the burden under § 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.”  (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that § 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].)  Reconsideration cannot be granted based on claims that the court misinterpreted the law in its initial ruling because this is not a "new" or "different" matter.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) 

II.        Discussion

As a preliminary matter, in so far as the motion seeks to enter default against either the Plaintiff or the Cross-Defendant, the Court will not decide the issue as a Motion for Reconsideration is not the appropriate vehicle to enter a default against a party.

            Defendant’s motion is considered timely. Here, the Order to deny McCool’s Ex Parte Application was served on December 05, 2023. Defendant filed her motion to reconsider on December 08, 2023 (“12/08/23 Motion”), three days after service was rendered on the parties.

McCool provides the Court with her Declaration, which attaches an email exchange between the parties as to the basis for McCool to seek default be entered against Plaintiff. (Maureen McCool Decl. p. 1; Exh. A). McCool states that her two prior ex parte applications contain a series of reasons as to why they should be granted. (Id. ¶4.) Moreover, McCool argues that because of the Court’s refusal to allow oral arguments, she could not determine why the balance of the reasons were not valid (Id. ¶5)  McCool declares that she was confused as to why the Court determined that her ex parte applications were not in compliance with CRC rule 3.1202(c), because per her moving papers she was to “see a series of specialists regarding my medical condition, and the "issues" documented in my blood work.” (Id. ¶7.) McCool further states that she filed this motion to obtain an understanding of why the Court focused on one aspect and not the balance of her arguments. (Id. ¶ 9.)

The Court finds the statements made in McCool’s declaration not to be new facts, and moreover that McCool misunderstands her burden under a motion for reconsideration. CCP § 1008(b) provides in relevant part that “A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law…” (Code. Civ. Proc. § 1008(b).) The legislative intent behind CCP § 1008 was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 CA4th 1494, 1500.) The moving party’s burden under CCP § 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.” (New York Times Co. v. Sup.Ct. (Wall St. Network, Ltd.) (2005) 135 CA4th 206, 212-213.)

Here, McCool does not present the Court with new facts or circumstances not previously considered because she essentially resubmits the facts stated in her ex parte applications’ moving papers. McCool’s reasoning for seeking reconsideration, to receive clarity on the Court’s prior order denying her ex parte applications, is not appropriate for the purpose of this motion as a reconsideration essentially asks the Court to re-review its decision due to newly discovered evidence that would have changed the Court’s ruling if it had been presented at the time the Court initially decided the issue. Asking the Court to clarify its prior order or providing the Court with the same evidence as it reviewed before, is not new facts or circumstances for purposes of CCP § 1008.

Accordingly, for the reasons specified above, and since the Motion does not satisfy CCP § 1008, the Court therefore lacks jurisdiction under § 1008(e).

III.       Conclusion

            Defendant/Cross-Complainant Maureen McCool’s Motion for Reconsideration of December 5, 2023, Ex Parte Applications for an Order Entering Default Against Cross-Defendant and Continuance of Trial and Re-Opening Discovery is DENIED in so far as the Court lacks jurisdiction over the motion.

Moving party is ordered to give notice.