Judge: Mark H. Epstein, Case: 22SMCV00093, Date: 2023-08-31 Tentative Ruling

Case Number: 22SMCV00093    Hearing Date: August 31, 2023    Dept: I

USCL’s motion for reconsideration is DENIED.

USCL moves the court to reconsider a ruling issued on March 30, 2023.  The ruling issued after a lengthy oral argument at the end of which the court took the matter under submission. 

The court’s ruling was filed and served on March 30, 2023.  On April 17, 2023, USCL moved for reconsideration.  The motion was arguably timely given the extra time for service and the weekend, although it is not 100% clear.  However, the motion was not in proper format and was difficult (bordering on impossible) to read or understand.  On May 3, 2023, the court continued the matter to June 7, 2023 and ordered USCL to submit a new brief that was no longer than 15 pages, and was double-spaced including quotes and footnotes.  (The latter because USCL had an unusual number of lines and pages devoted to single-spaced things such that the brief was actually very much overlength.)  The court ordered the new brief to be a standalone brief and to be filed in five court days (meaning May 10).  Sadly, the order actually stated that it was Affinia that was required to file the papers, not USCL, and the order had to be revised nunc pro tunc.  The nunc pro tunc order was issued on May 17, 2023.  Unfortunately, the nunc pro tunc order also was not correct.  And as such, another nunc pro tunc order was issued on May 30, 2023.  The difference was that the court required that the new motion be clearly organized and clearly written and that the moving party attempt to keep invective out of the brief.  The court also re-set the new hearing date to July 6, 2023, to give USCL time to write an appropriate brief, which was due five court days later, or June 6, 2023.  On June 7, 2023, the motion was continued again, this time to August 31, 2023.  On August 9, 2023, USCL filed its revised motion for reconsideration.    Malibu Villas filed an opposition on August 18, 2023, and USCL filed its reply on August 24, 2023.

The first question is whether the motion for reconsideration is timely.  It must be filed within 10 days of the original order.  The court will assume that the original motion was timely.  If that is the case, then any extension granted or ordered by the court will also be sufficient to protect the motion from an untimeliness argument to the extent of the order and the court is willing to give USCL the benefit of any reasonable timing doubt.  The original order required that the revised motion be filed by May 10.  But there were two nunc pro tunc orders, and the court would certainly therefore understand that the repeated five court day additional time clock did not start to run until the final order.  The final nunc pro tunc order was May 30, 2023, meaning June 6, 2023 was the deadline.  But even if one assumes that the June 7, 2023, order is the one that counts, that would make the motion due by June 14, 2023 (or perhaps a bit later to account for service).  The actual motion was not filed until almost two months later—August 9, 2023.  The court does not see how that is timely.  The motion is DENIED for untimeliness.

Even were the court to excuse the untimeliness, there are no new facts, circumstances, or law that would support reconsideration.  USCL’s brief primarily argues that the new circumstance is that USCL did not anticipate that the court would rule against it in light of the argument.  The court does not think it erred, but even if it did, that is not a ground for reconsideration under section 1008.  The other problem is that USCL misperceives the difference between colloquy and rulings.  The court made many statements during oral argument.  In some cases, the statements sounded declarative, but that does not make them rulings.  Colloquy is colloquy.  This court likes to press counsel and suggest tough facts, but that is different than a finding or binding ruling.  The quotations upon which USCL relies were not rulings by the court; they were statements made during oral argument.  USCL also argues that section 473 applies.  The court does not understand that argument. 

Finally, the court notes that USCL’s reply is particularly troubling.  Rather than trying to dial down the rhetoric, USCL doubles down with accusations that convincingly demonstrate that USCL never took to heart the court’s request that the parties limit themselves to law and fact.  Of course, the opposition was essentially designed to bait USCL into writing the kind of reply that it did, but even so USCL should have responded with the merits rather than invective.

In any event, the bottom line is that there is no basis for reconsideration.  The motion is DENIED.  The court’s earlier order is, was, and remains its final word on the subject.