Judge: Mark H. Epstein, Case: 21SMCV00674, Date: 2024-12-24 Tentative Ruling

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Case Number: 21SMCV00674    Hearing Date: December 24, 2024    Dept: I

This is a motion for renewal or reconsideration of a decision denying a prior motion for summary judgment.  The motion was heard and denied on September 16, 2022—over two years ago—by a different judge.  Preliminarily, the court notes that it had earlier questioned whether it had jurisdiction to reconsider a decision by another sitting judge.  Miles is correct that the court does have jurisdiction.  The prior judge is recused based on a 170.6 motion, and that judge is therefore unavailable to hear the instant motion.

A motion for reconsideration or renewal is governed by CCP section 1008.  Generally, it must be brought within 10 days, although the 10 day period does not apply to a renewed motion, and, of course, a court always has inherent authority to reconsider a prior order before the case is fully resolved.  While the 10 day limit might not apply, here there was a two year gap.  Even a renewed motion must be made within a time supported by reasonable diligence.  That is just too long to come within section 1008 and the motion is DENIED on that basis.  But even were the court to consider this as just a renewed motion for summary judgment or adjudication, it would be denied.  The court has reviewed the moving papers, but they are not sufficient to shift the burden.  The thrust of the motion is that Mashian in the past claimed in declarations to have personal knowledge of facts but in some discovery responses verified on information and belief—which suggests less than personal knowledge.  Read in context, his smoking gun is just not smoking.  (And even if it were, Miles received the discovery responses in October 2022, yet this motion was filed on September 25, 2024.)  The court sees no inconsistency there, let alone one rising to the level of perjury (as Miles asserts).  Nor is there a want of consideration for the contract.  Whether the informal Viridity contract came first or the more formal retainer agreement with Miles, there was consideration.  The consideration offered by the firm was that it would do the legal work; the consideration it got was that both Viridity and Miles would collectively be responsible for the fee.  Miles insists that the two contracts were hermetically sealed—siloed off from one another as if they were two representations.  That, simply put, is not the only reasonable interpretation of the transaction—it is not even the more reasonable interpretation.  The more reasonable interpretation is that Mashian’s firm viewed the two agreements together as related to one another.  Certainly, for summary judgment purposes, the court need not find that, as a matter of law, the two contracts were sufficiently unrelated so that upon entry of one there was no consideration for the other.  As an aside, the court does not believe that this was the keystone of Judge Mandel’s earlier decision either.  Her decision was based, as it states, on Miles’ failure to meet his initial burden.

In short, for a host of reasons, the renewed motion for summary judgment is DENIED.