Judge: Mark E. Windham, Case: BC644230, Date: 2024-03-12 Tentative Ruling
Case Number: BC644230 Hearing Date: March 12, 2024 Dept: 26
Jahanshahi v. Lewin, et al.
MOTION FOR RECONSIDERATION
TENTATIVE RULING:
Cross-Complainant
Rodney T. Lewin’s Motion for Reconsideration of and/or the Vacating of (1) the
Court Order of Spring Street Department 26 Entered January 3, 2024 Granting
Plaintiff/Cross-Defendant Shahrouz Jahanshahi’s Fourth Peremptory Challenge and
(2) the Court Order Of Stanley Mosk Department Entered January 4, 2024
Transferring Case to Chatsworth in Response Thereto, is DENIED.
ANALYSIS:
On December 20, 2016,
Plaintiff/Cross-Defendant Shahrouz Jahanshahi (“Cross-Defendant”) filed the
instant action, acting in propria persona, for breach of contract, common
counts, fraud, general negligence, and intentional tort against
Defendant/Cross-Complainant Rodney Lewin (“Cross-Complainant”). The action
arose from Cross-Complainant’s representation of Jahanshahi in an action
against West Wing Grand Plaza (“West Wing”). (See Compl., generally.)
On March 1, 2017, Cross-Complainant, as
assignee of the Law Offices of Rodney T. Lewin APC, filed a Cross-Complaint
against Cross-Defendant seeking to recover $10,273.15 in attorney’s fees, plus
interest (Cross-Compl., ¶12.) On June 6, 2017, Cross-Defendant filed a First
Amended Complaint to which Cross-Complainant demurred. On October 25, 2017, the
Court sustained the demurrer to the First Amended Complaint without leave to
amend. (Minute Order, 10/25/17.) The First Amended Complaint was dismissed
with prejudice on November 16, 2017. (Minute Order, 11/16/17.) A month later,
the Court granted Cross-Complainant’s motion to reclassify the case from the
unlimited jurisdiction court to the limited jurisdiction court. (Minute Order,
08/15/18.)
On December 10, 2019, the Court granted
Cross-Complainant’s Motion for Summary Judgment, finding that Lewin was
entitled to damages in the amount of $10,273.15, plus $4,057.87 in prejudgment
interest. (Minute Order, 12/10/19.) Judgment was entered in favor of
Cross-Complainant and against Cross-Defendant on April 13, 2021.
On February 21, 2022, Cross-Defendant filed a Motion, or in
the alternative, Application for Recusal of Judges of the Appellate Division of
this Court Judge McKay, Judge Thomas, Judge Kumar and Judge Ricciardulli, and
Superior Court Judge Christopher K. Lui, James Blancarte for cause. It does not
appear that this Motion was ever reserved, so it was not heard by the Court. Cross-Defendant
then made an oral motion to disqualify Judge Rolf Treu on June 26, 2023; another
oral motion to disqualify was made by Cross-Defendant with respect to Judge
Thomas Greigio on September 28, 2023. Both challenges were denied. (Minute
Order, 09/28/23.) Finally, Cross-Defendant filed a preemptory challenge on
Judicial Council Form LA-CIV 105 on November 16, 2023, which the Court granted
on January 3, 2024. (Challenge to Judicial Officer – Preemptory (170.6),
01/03/24; Minute Order, 01/03/24.) On January 4, 2024, pursuant to the order
granting the preemptory challenge, the Court transferred the action to D43 of
the Chatsworth Courthouse. (Minute Order, 01/04/24.)
Cross-Complaint filed the instant Motion for Reconsideration
and/or Vacating Order on January 11, 2024. Cross-Defendant filed an opposition
on February 28, 2024 and Cross-Complainant replied on March 5, 2024.
Discussion
Cross-Complaint moves for an order reconsidering, and upon
reconsideration, vacating the order granting Cross-Defendant’s preemptory
challenge and transferring the action to the Chatsworth Courthouse. The Motion
is brought pursuant to Code of Civil Procedure sections 1008, 473, subdivisions
(a)(1) and (d), and 475.
Code of Civil Procedure section 1008
Code of
Civil Procedure section 1008, subdivision (a), which states in relevant part:
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 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.
(Code Civ.
Proc., § 1008, subd. (a).) The Court lacks the jurisdiction to reconsider a
prior ruling, on motion of a party, where the motion does not comply with the
requirements of Code of Civil Procedure section 1008. (Code Civ. Proc., § 1008,
subd. (e); Le Francois v. Goel (2005) 35 Cal.4th 1094, 1106.)
Cross-Complainant argues that the new or different facts that warrant
reconsideration are that the Court was unaware of the three prior preemptory
challenges because Department 26 was new to this case and the three
prior section 170.6 challenges did not appear on the face of the docket.
(Motion, p. 9:14-19; RJN, Exh. K.) The prior section 170.6 challenges, however,
are apparent from the docket. As detailed above, Cross-Defendant filed a
Motion, or in the alternative, Application for Recusal of Judges on February
21, 2022 and the oral requests to disqualify were detailed in the Court’s
September 28, 2022 minute order. The “docket” to which Cross-Complainant points
called “Court Information” is not the same record to which the Court has access.
(Motion, RJN, Exh. K.) Not only were the
prior preemptory challenges apparent from the record before the Court but the
Court was, in fact, aware of them when it granted the November 16, 2023
challenge on January 3, 2024.
Cross-Complaint also argues that a new or different fact
exists because it was not given notice of the November 16, 2023 preemptory
challenge. (Motion, Wittner Decl., ¶¶11-12.) Had it been given notice,
Cross-Complainant contends it would have filed an objection alerting the Court
of the three prior preemptory challenges, and that the November 16, 2023
preemptory challenge was improper and could not be granted. (Id. at
¶12.) As discussed, however, the Court was aware of the prior preemptory
challenges. Any objection by Cross-Complainant raising these facts, which were
already known to the Court, would not have changed the outcome.
The request for relief from the January 3 and 4, 2024 orders
pursuant to Code of Civil Procedure section 1008, therefore, is denied.
Code of Civil Procedure section 473, subdivision (a)(1)
Code of Civil Procedure section 473, subdivision (a)(1)
states in relevant part:
The court may, in furtherance of
justice, and on any terms as may be proper, allow a party to amend any pleading
or proceeding by adding or striking out the name of any party, or by correcting
a mistake in the name of a party, or a mistake in any other respect; and may,
upon like terms, enlarge the time for answer or demurrer. The court may
likewise, in its discretion, after notice to the adverse party, allow, upon any
terms as may be just, an amendment to any pleading or proceeding in other
particulars; and may upon like terms allow an answer to be made after the time
limited by this code.
(Code Civ. Proc., § 473, subd. (a)(1).) Cross-Complainant
has not shown that there is an order that requires amendment or correction. On
February 21, 2022, Cross-Defendant filed an Application for Recusal of the
Appellate Division of this Court Judge McKay, Judge Thomas, Judge Kumar and
Judge Ricciardulli, and Superior Court Judge Christopher K. Lui, James
Blancarte for cause. It does not appear that this Motion was ever reserved, so
it was not heard by the Court. Cross-Defendant then made an oral motion to
disqualify Judge Rolf Treu on June 26, 2023; another oral motion to disqualify
was made by Cross-Defendant with respect to Judge Thomas Greigio on September
28, 2023, both of which were denied. (Minute Orders, 08/03/23 and 09/28/23.)
The Motion relies on the language of Code of Civil Procedure
section 170.6, subdivision (a)(4), which states: “Except as provided in this
section, no party or attorney shall be permitted to make more than one such
motion in any one action or special proceeding pursuant to this section. In
actions or special proceedings where there may be more than one plaintiff or
similar party or more than one defendant or similar party appearing in the
action or special proceeding, only one motion for each side may be made in any
one action or special proceeding.” (Code Civ. Proc., § 170.6, subd. (a)(4).) This
language has been interpreted by the Court of Appeals, as follows:
Petitioner claims that the
peremptory challenge or motion is made once a party files the application,
regardless of the outcome. Not so. If a challenge is properly made, it takes
effect immediately; if a judge is presented with a timely and proper challenge,
the judge must immediately transfer the case for reassignment.
(Louisiana–Pacific Corp. v. Philo Lumber Co. (1985) 163 Cal.App.3d 1212, 1219,
210 Cal.Rptr. 368; Sunkyong Trading (H.K.) Ltd. v. Superior Court (1992) 9
Cal.App.4th 282, 291, 11 Cal.Rptr.2d 504.) Section 170.6, subdivision (3),
applies if a motion has been “duly presented” and a declaration under penalty
of perjury has been “duly filed.” Black's Law Dictionary, defines “duly” as
“[i]n due or proper form or manner, according to legal requirements ...
properly ... according to law in both form and substance.” (Black's Law Dict.
(6th ed.1990) p. 501.) Section 170.6, subdivision (3), provides a party may not
be permitted to make more than one “such” motion. In the words of the statute
“such” motion refers to one that has been “duly” made.
(Truck Ins. Exchange v. Superior Court (1998) 67
Cal.App.4th 142, 147.) Cross-Defendant did not “duly” make a preemptory
challenge until the filing on November 16, 2023. The Application for Recusal
filed on February 21, 2023 was not served on the other parties. (Motion, Silver
Decl., ¶9.) Nor were the other preemptory challenges granted such that they
were “duly made.” (Ibid.) The only preemptory challenge that has been
duly made was the one filed on November 16, 2023 and granted on January 3,
2024.
Code of Civil Procedure section 473, subdivision (d)
Cross-Complainant alternatively points to Code of Civil
Procedure section 473, subdivision (d), which allows the Court to set aside any
void judgment or order. The order granting the section 170.6 challenge is not
void, however. The Motion defines a “void” order as one unauthorized by law,
but cites no authority for this rule. (Motion, p. 12:13-14.) A “void” order is
one entered by a court that lacks fundamental jurisdiction over the subject
matter. (Lee v. An (2008) 168 Cal.App.4th 558, 565.) Merely acting in
excess of a statute renders the order merely voidable. (Ibid.)
Therefore, Code of Civil Procedure section 473, subdivision (d) is not grounds
to vacate the order granting the preemptory challenge.
Code of Civil Procedure section 475
Finally, Cross-Complaint cites Code of Civil Procedure
section 475, which states in relevant part:
No judgment, decision, or decree shall
be reversed or affected by reason of any error, ruling, instruction, or defect,
unless it shall appear from the record that such error, ruling, instruction, or
defect was prejudicial, and also that by reason of such error, ruling,
instruction, or defect, the said party complaining or appealing sustained and
suffered substantial injury, and that a different result would have been
probable if such error, ruling, instruction, or defect had not occurred or
existed
(Code Civ. Proc., § 475.) First, this statute has been held
unconstitutional by the California Supreme Court. (San Jose Ranch Co. v. San
Jose Land & Water Co. (1899) 126 Cal. 322, 325.) Furthermore, its
language pertains to circumstances when an order cannot be reversed; it offers
no grounds upon which an order may be reversed.
Conclusion
Based on the
foregoing, Cross-Complainant Rodney T. Lewin’s Motion for Reconsideration of and/or
the Vacating of (1) the Court Order of Spring Street Department 26 Entered
January 3, 2024 Granting Plaintiff/Cross-Defendant Shahrouz Jahanshahi’s Fourth
Peremptory Challenge and (2) the Court Order Of Stanley Mosk Department Entered
January 4, 2024 Transferring Case to Chatsworth tn Response Thereto, is DENIED.
Court clerk to give notice.