Judge Lynne M. Hobbs, Case Number: 20STCV25573, Date: 2024-09-05 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 20STCV25573, Date: 2024-09-05 Tentative Ruling

Case Number: 20STCV25573 Hearing Date: September 5, 2024 Dept: 61

JOSHUA ARAUJO, A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM, SANDRA ALVAREZ vs LOS ANGELES UNIFIED SCHOOL DISTRICT, et al.

TENTATIVE

Plaintiff Joshua Araujo’s Motion for Reconsideration of June 18, 2024 Order is DENIED.

Defendant to give notice.

DISCUSSION

Code Civ. Proc. § 1008 is the exclusive means for seeking reconsideration of an order or renewing a motion. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 384.) The application to reconsider the matter and modify, amend, or revoke the prior order must be made within 10 days after service upon the party of written notice of entry of the order to the same judge or court that made the order. (Code Civ. Proc. § 1008(a).) A motion for reconsideration may only be brought if the party moving for reconsideration can offer “new or different facts, circumstances, or law” which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Id.) There is a strict requirement of diligence - i.e., the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) “The burden under section 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. Superior Court (2005) 135 Cal.App.4th 206, 212–13.)

Plaintiff Joshua Araujo (Plaintiff) moves for reconsideration of this court’s June 18, 2024 order denying his motion for relief from dismissal. The court denied that prior motion, which was based on the attorney neglect that led to Plaintiff’s failure to oppose Defendant Los Angeles Unified School District’s (Defendant) motion for summary judgment. The court reasoned as follows:

Plaintiff offers no basis for relief from dismissal. Plaintiff’s counsel was at all times aware of the pending motion for summary judgment, given its personal service upon Plaintiff’s counsel, and, as Defendant notes in opposition, (See 7/27/2023 Notice of Motion and Proof of Service.) The same moving papers were served by email on July 25, 2023, and someone associated with Plaintiff’s counsel followed up by email, seeking an MS Word version of the separate statement. (Rashidi Decl. Exh. 7.) At the hearing on the motion for summary judgment, Diego Brito appeared on behalf of Plaintiff to argue the motion. (See 10/10/23 Minute Order.) Richie’s declaration, is vague as to the timing of the departure of the two attorneys, or to the specific omissions involved in their departure. There is no indication that Plaintiff’s counsel was ever unaware of the motion.

Plaintiff contends that mandatory relief is available under that portion of section 473, subd. (b), pertaining to the provision of an attorney’s affidavit of fault. (Motion at pp. 4–5.) However, “[m]andatory relief is not available after a summary judgment or judgment after trial, which involve actual litigation and adjudication on the merits.” (Huens v. Tatum (1997) 52 Cal.App.4th 259, 263.)

Additionally, the present motion is unreasonably delayed. While a motion for relief under Code of Civil Procedure § 473, subd. (b) may not be brought more than six months after the order challenged, it must also be brought “within a reasonable time.” (Code Civ. Proc. § 473, subd. (b).) “[T]he moving party must establish its motion was made ‘within a reasonable time.’ What constitutes a ‘reasonable time’ depends on the circumstances of each case but definitively requires a showing of diligence in making the motion after the discovery of the default.” (Arega v. Bay Area Rapid Transit Dist. (2022) 83 Cal.App.5th 308, 316, internal quotation marks and citations omitted.) Plaintiff here has made no attempt to show diligence, and has offered no excuse for the delay. (See 6/18/2024 Order.)

The present motion provides no basis to reconsider the prior order. Plaintiff attempts to show that reconsideration is appropriate by reference to the fact that Darren Richie was not included on the email service of the motion for summary judgment, rather than the handling attorneys who departed the firm while the motion was pending. (Motion Exh. A.) This evidence ought to have been presented in connection with Plaintiff’s original motion. And Plaintiff neglects that the motion was personally served upon his counsel’s office, in addition to the email service. Plaintiff also neglects that the motion for relief from dismissal was untimely, as Plaintiff knew of the motion prior to the hearing date. This was evidenced by the appointment of appearance counsel for the hearing. However, the motion itself was only filed six months later, without any showing as to the reasonable amount of time to file such a motion under Code of Civil Procedure § 473, subd. (b).

Plaintiff finally argues that this court was incorrect to deny Plaintiff’s request for mandatory relief, because Defendant’s motion for summary judgment was not actually litigated, given the absence of an opposition (Opposition at p. 3, citing Huens v. Tatum (1997) 52 Cal.App.4th 259, 263.) This argument is without merit. “[T]he mandatory relief provision of section 473(b) does not include relief for mistakes an attorney makes in opposing, or not opposing, a summary judgment motion.” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 228.) As noted in the prior order, the lack of opposition is not a basis for mandatory or discretionary relief.

The motion is DENIED.