Judge: Mark E. Windham, Case: BC672129, Date: 2023-09-06 Tentative Ruling
Case Number: BC672129 Hearing Date: November 22, 2023 Dept: 26
Bacchus
v. Thomson, et al.
MOTION FOR RECONSIDERATION
TENTATIVE RULING:
Plaintiff Haroun Bacchus’ Motion
for Reconsideration is DENIED.
ANALYSIS:
On August 11,
2017, Plaintiff Haroun Bacchus (“Plaintiff”)
filed the Complaint in this action against Defendant Misty Thomson
(“Defendant”) in the unlimited jurisdiction court. The Complaint originally
alleged Defendant illegally locked Plaintiff out of their apartment in
violation of Code of Civil Procedure section 789.3 and sought monetary and
injunctive relief. The operative complaint is the Second Amended Complaint,
filed on December 18, 2019. On January 12, 2022, the Court granted Defendant’s
Motion for Judgment on the Pleadings as to the first, second, third and fifth
causes of action of the Second Amended Complaint without leave to amend.
(Minute Order, 01/12/22.) The only remaining cause of action is for breach of
contract re: nonpayment of the utility bill. (Ibid.) The Court then
reclassified the action as a limited jurisdiction case and it was transferred
to Department 26 in the Spring Street Courthouse. (Notice of Reclassification,
01/26/22.) On June 22, 2022, the Court denied Plaintiff’s Motion for Reconsideration
of the ruling on the Motion for Judgment on the Pleadings. (Minute Order,
06/22/22.)
On December 21,
2022, the Court granted Plaintiff’s Motion to File a Supplemental Complaint.
(Minute Order, 12/21/22.) Plaintiff filed the Supplemental Complaint on
December 30, 2022. Trial was held on January 10, 2023, with judgment in favor
of Defendant. (Judgment, 01/10/23.) Notice of entry of the judgment was served
on the parties by the clerk on the same date. Plaintiff filed a Notice of
Intention to Move for New Trial which the Court denied on March 30, 2023.
(Minute Order, 03/30/23.)
On October 2,
2023, the Court denied Plaintiff’s Motion for Reconsideration with respect to
the Court’s ruling on the Motion for New Trial on April 10, 2023. (Minute
Order, 10/02/23.) Plaintiff filed the instant Motion for Reconsideration Re:
Motion to Reclassify Jurisdiction of Case on September 18, 2023. No opposition
has been filed to date.
Discussion
First, Plaintiff moves for relief from the order dated June 16, 2023
denying the Motion to Reclassify Action pursuant to Code of Civil Procedure
section 473, subdivision (b). Under this statute, an application for
relief must be made no more than six months after entry of the order from which
relief is sought and must be accompanied by an affidavit of fault attesting to the
moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., §
473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th
130, 143.) When brought pursuant to the provision for discretionary relief
based on party fault, the request must have been filed within a reasonable
amount of time. The Motion was timely brought shortly after the September 6,
2023 order but does not explain how Plaintiff’s failure to appear is grounds
for relief from the order. (Motion, pp. 2:15-3:27.) Plaintiff does not show
that the Court would have issued a different ruling had Plaintiff appeared at
the hearing.
Plaintiff also moves pursuant to 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.) The
purpose of this jurisdictional bar is to protect the Court from repetitive
motions. (Ibid.) Also, the statute requires the moving party “to show a satisfactory
explanation for failing to provide the evidence earlier, which can only be
described as a strict requirement of diligence” the purpose of which is to
incentivize parties “to efficiently marshall their evidence.” (Baldwin v.
Home Sav. of America (1997) 59 Cal.App.4th 1192, 1199 [citing Garcia v.
Hejmadi (1997) 58 Cal.App.4th 674, 689-690].)
Plaintiff’s Motion for Reconsideration cites no new facts or
law that could not have been presented in his Motion to Reclassify Action.
Instead, Plaintiff points to the very same Motion to Reclassify, which the
Court already considered. (Motion, p. 5:2-10.) The only other fact to which
Plaintiff points is a purported failure to serve him with the Notice of Entry
of Judgment from January 2023. (Id. at pp. 4:22-5:1.) This was already
pointed out to the Court, as Plaintiff admits, and therefore, is not a new or
different fact.
Conclusion
Therefore,
Plaintiff Haroun Bacchus’ Motion for Reconsideration is DENIED.
Court clerk to give notice.