Judge Margaret L. Oldendorf, Case Number: 22BBCV00448, Date: 2023-12-13 Tentative Ruling

Judge: Margaret L. Oldendorf, Case: 22BBCV00448, Date: 2023-12-13 Tentative Ruling

This motion arises out of a commercial unlawful detainer action. Plaintiff Yasam Legacy LLC (Yasam) alleged in its Complaint that Defendant Papanicolaou Enterprises Inc. dba NoHo Diner remained in possession of 11329 Magnolia Blvd, North Hollywood, CA 91601 (Subject Property) despite a 3-day notice to quit or pay rent.

On October 23, 2023, after a default in the terms of a negotiated settlement, the Court denied Yasam’s Ex Parte Application to Enter Judgment pursuant to CCP Section 664.6 and the associated UD stipulation, without prejudice. Plaintiff Yasam filed this motion for reconsideration on November 3, 2023. Yasam argues that: (1) emails exchanged between counsel for the parties indicate that the final language was agreed to; and (2) technology issues caused two words to be dropped off the final version of the UD Stipulation.

Defendant’s counsel filed a late opposition to Yasam’s motion. The Court has considered the opposition: but it fails to set forth any relevant evidence or any persuasive basis to deny the motion. The motion is therefore granted.[1]

“(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(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order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.” (CCP § 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 CCP 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.” (Ibid.; 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.)

Here, Yasam urges that the final language of the stipulation and settlement agreement was agreed to by both parties. Yasam additionally urges that the missing words “by” and “paid” in Section 6 of the UD Stipulation were inadvertently dropped from the final version due to technology errors. (Motion, p. 7: 11-17.) Specifically, Yasam urges that the final version was a non-editable pdf, which failed to catch two words when it was finalized and transmitted electronically. (Motion, p. 7: 20-24.)

In support, Yasam provides the emails between its counsel of record and former counsel of record for Defendants NoHo Diner et al. Yasam also provides the declaration of its attorney, Niv Davidovich, who declares that the emails are true and correct copies of the emails exchanged between himself and former counsel for Defendants, Daniel J. Bramzon. (Davidovich Declaration ¶ 4, referencing Exh. D.) Bramzon’s March 23, 2023 email provides “Here is the revised UD stip. I cannot erase the date in #5.” (Davidovich Decl., Exh. D.) Davidovich replied and approved the stipulation. (Davidovich Dec., ¶ 5.) Davidovich additionally declares that the two missing words in the UD Stipulation failed to carry over to the final version.

Yasam also provides the declaration of Isaac Guzman, an attorney who appeared at the hearing on the ex parte application. (Guzman Declaration.) Guzman declares that he emailed Defendant’s current counsel, Adam C. Fullman, after the ex parte was denied. (Guzman Decl. ¶¶ 5,6, 7.) Exhibit C to the Guzman Declaration is an email exchange between Guzman and Fullman. Guzman attached the email correspondence between Davidovich and Bramzon, where both parties agreed to the final language of the stipulation. Fullman responded that he had been instructed by his client to require Plaintiff to proceed with a motion seeking further relief.

Secondly, Yasam argues that the motion for reconsideration should be granted as the parties did agree to all material terms of the settlement. Under CCP Section 664.6, a settlement is only enforceable if parties have agreed to all material terms, as shown by an objective test. (See Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182; Weddington Productions Inc. v. Flick (1998) 60 Cal.App.4th 793, 811.) Here, the October 23 emails between Davidovich and Bramzon establish objectively that this was the case. The declaration of Davidovich further supports this.

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, or order or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP § 473(b).

Lastly, Yasam urges that that the motion for reconsideration should be granted under 473(b) due to the inadvertence of counsel. In support, Yasam urges that Mr. Davidovich inadvertently agreed, in the October 23 emails, to the final UD stipulation not realizing two words were dropped off in finalizing the document. (Motion, p. 12:20-21.) The Court is persuaded that this is a second basis for granting relief.

[1] The Court notes that it denied Yasam’s ex parte application for entry of judgment without prejudice. Even assuming this motion for reconsideration is not the proper procedural vehicle to address Yasam’s arguments (which is not the case), the Court would have entertained them by way of a subsequent ex parte application.