Judge Lee S. Arian, Case Number: BC649616, Date: 2024-08-05 Tentative Ruling

Judge: Lee S. Arian, Case: BC649616, Date: 2024-08-05 Tentative Ruling

Case Number: BC649616 Hearing Date: August 5, 2024 Dept: 27

Hon. Lee S. Arian, Dept 27

MOTION FOR RECONSIDERATION

Hearing Date: 8/5/24

CASE NO./NAME: BC649616 ROSA VELASCO VS RICHARD ESCOTO et al.

Moving Party: Plaintiff

Responding Party: Unopposed

Notice: Sufficient

Ruling: MOTION FOR RECONSIDERATION IS DENIED

Legal Standard

A motion for reconsideration must be made “…within 10 days after service upon the party of written notice of entry of the order….” (CCP §1008(a).)

The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration.¿ (See CCP § 1008(a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.)¿ The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown.¿ (CCP § 1008(a).)¿ Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added].)¿ The legislative intent 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 Cal.App.4th 1494, 1500.)

Additionally, CCP § 1008, which allows a motion to reconsider to be granted when it is based on an alleged different state of facts, demands newly discovered evidence that the moving party could not, with reasonable diligence, have previously discovered and produced. (Wilcox v. Ford (1988) 206 Cal.App.3d 1170.)

Discussion

On February 22, 2017, Plaintiff filed the present case. After numerous unsuccessful attempts to obtain a default judgment, the case was dismissed on November 8, 2023. On May 9, 2024, Plaintiff filed a motion to set aside the dismissal, which the court denied on several grounds: first, the motion was untimely; second, there was no proof of service indicating that Defendant was notified of the motion; third, no proposed default judgment to correct the issue was included with the motion; and fourth, and most importantly, the court highlighted that more than four years after the initial filing, Plaintiff had still not obtained a default judgment against Defendant despite numerous attempts. The court noted that it was not one mistake that led to the decision, but rather the overall conduct of Plaintiff’s counsel throughout the case. Thus, the court found that the dismissal was not caused by the attorney's mistake, inadvertence, surprise, or neglect.

On July 5, 2024, Plaintiff moved the court again to reconsider its May 9, 2024, decision. Plaintiff introduced evidence arguing that the motion for reconsideration was originally timely filed within the 180-day time period, but due to a clerical error, the original motion was rejected, leading to the motion being filed beyond the 180-day period. However, this only addressed one of the four reasons why the initial motion for reconsideration was denied. The present motion did not address the other deficiencies noted in the minute order, such as why no proof of service to Defendant’s counsel was included in the original motion and why no proposed document/default judgment package correcting the issue was attached to the moving papers. Most importantly, it did not address Plaintiff's failure to obtain a default judgment in over four years. Therefore, even assuming that Plaintiff’s motion had been timely, the court would have rendered the same decision based on the other bases. Thus, the present motion is denied.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion.