Judge Loren G. Freestone, Case Number: 37-2020-00018935-CU-FR-CTL, Date: 2024-06-21 Tentative Ruling

Judge: Loren G. Freestone, Case: 37-2020-00018935-CU-FR-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 20, 2024

06/21/2024 10:30:00 AM C-64 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Loren G. Freestone

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Civil - Unlimited Fraud Motion Hearing (Civil) 37-2020-00018935-CU-FR-CTL TAYLOR-MARTINO VS RYMAL [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING Plaintiff Lula Taylor-Martino's motion for reconsideration is DENIED.

On March 14, 2024, the court posted a tentative ruling granting Taylor-Martino's motion to strike the answer filed by Defendants Tracey Rymal, Deanne Rymal, Donna Kramer, and Joseph Kramer on the ground it was not verified as required by Code of Civil Procedure section 446, subdivision (a). The tentative ruling noted that 'the defect is readily capable of being cured,' and therefore granted '10 days leave to file a first amended answer.' (ROA #202.) At the March 15, 2024 hearing, Defendants requested that leave not be limited to an amended answer.

Based on various developments that had occurred since the outset of this case, Defendants requested that the tentative be modified to allow them leave to file a demurrer. The court granted that request and confirmed the tentative ruling as modified. (ROA #203.) Taylor-Martino moves for reconsideration of the modification to the tentative ruling.

'[Code of Civil Procedure] Section 1008 governs applications for reconsideration and renewed applications. Applications for reconsideration, which may be brought by any party affected by the order, are governed by section 1008, subdivision (a), which requires the motion to be (1) filed within 10 days after service upon the party of written notice of entry of the order of which reconsideration is sought, (2) supported by new or different facts, circumstances, or law, and (3) accompanied by an affidavit stating the details of the first motion and what new or different facts, circumstances, or law are claimed to be shown.' (Randy's Trucking Inc. v. Superior Court (2023) 91 Cal.App.5th 818, 843.) Courts have also construed section 1008 'to require a party filing an application for reconsideration or a renewed application to show diligence with satisfactory explanation for not having presented the new or different information earlier.' (Id. at pp. 843–844.) These requirements are jurisdictional. (Code Civ. Proc., § 1008, subd. (e).) 'An order denying a motion for reconsideration is interpreted as a determination that the application does not meet the requirements of section 1008. If the requirements have been met to the satisfaction of the court but the court is not persuaded the earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling.' (Randy's Trucking, supra, 91 Cal.App.5th at p. 844.) Here, Taylor-Martino submitted a declaration wherein she states that she witnessed counsel for Calendar No.: Event ID: TENTATIVE RULINGS

3109869 41 CASE NUMBER: CASE TITLE: TAYLOR-MARTINO VS RYMAL [IMAGED] 37-2020-00018935-CU-FR-CTL Defendants 'manipulate' the court into modifying the tentative ruling. It is axiomatic that anything said at the hearing is not 'new or different.' Taylor-Martino also asserts that the modification 'is contrary to law with regards to California Code of Civil Procedure section 446.' Section 446 was cited in the motion to strike, and it was discussed in both the tentative ruling and final minute order. It is therefore not a 'new or different' law. Taylor-Martino further asserts that she was represented by a limited-scope attorney at the hearing, who 'objected to the modification of the tentative decision and was overruled.' The motion does no more than restate that objection. As such, the motion does not meet the requirements of section 1008.

Even if reconsideration were appropriate, Taylor-Martino has not shown that Defendants should be limited to filing an amended answer. A demurrer generally must be filed within 30 days after service of the complaint. (Code Civ. Proc., § 430.40, subd. (a).) However, courts have discretion to hear demurrers later in the case. (See Code Civ. Proc., § 473, subd. (a)(1); Jackson v. Doe (2011) 192 Cal.App.4th 742, 749–750; McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 279–282.) Here, Defendants initially answered the complaint in July 2020. With the exception of a few matters, the case was then stayed from November 2020 until October 2023 in deference to a related probate case.

Defendants indicate that various developments occurred during the three years the case was stayed, including rulings in the related probate case, and that those developments created a basis for a demurrer. The answer was then struck in March 2024, necessitating a new responsive pleading and creating an opportunity to file that demurrer. Martino has not explained how she would be prejudiced if Defendants are allowed to file a demurrer at this juncture, as opposed to filing an amended answer followed by a different pleading challenge (e.g., a motion for judgment on the pleadings), since any party could bring a motion for judgment on the pleadings on the same basis following an answer. Under the circumstances, there is good cause to grant leave to file a demurrer.

The motion for reconsideration does not meet the statutory requirements and is therefore denied. In any event, the court would reaffirm the March 15, 2024 order. The demurrer set for August 2, 2024 remains on calendar.

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