Judge: Martha K. Gooding, Case: 2019-01069354, Date: 2022-10-31 Tentative Ruling
Motion for Reconsideration
The Motion by Defendant Roy E. Whitehead, Inc. (“REW” or “Defendant”) for reconsideration of the Court’s 6/30/21 order denying its motion for summary judgment as to the Complaint by Plaintiffs Kevin Rye and Lori Rye (collectively, “Plaintiffs”) is DENIED.
CCP section 1008(b) states in part: “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon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…”
A motion under section 1008(b) is technically a “renewed” motion, rather than a motion for reconsideration. As with a motion under section 1008(a), the moving party has the burden to show “new or different facts, circumstances or law.” (Code Civ. Proc., § 1008(b).) Such renewed motion can be made even after the 10-day limit applicable to a motion for reconsideration. (Graham v. Hansen (1982) 128 Cal.App.3d 965, 970; Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1156.)
The burden under 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.” (New York Times Co. v. Superior Court, supra, 135 Cal. App. 4th at 212–13.)
Defendant first argues that there has been new/different facts or circumstances that have been discovered since the Court’s order denying its MSJ. Specifically, Defendant references the deposition of Eric Joseph Parker (“Parker”), president of Parker Woodworking and Construction, that took place on April 9, 2021 (which was after the MSJ was filed but before the opposition and hearing). Defendant contends that Parker’s testimony shows REW did not retain control over Plaintiff Kevin Rye’s work, and, even if it retained control, REW did not affirmatively contribute to Plaintiff Kevin Rye’s injuries.
Defendant additionally argues that there is new law – specifically, the recent California Supreme Court case published on September 9, 2021, Sandoval v. Qualcomm (2021) 12 Cal.5th 256 that impacts the Court’s ruling on REW’s Motion for Summary Judgment.
In Sandoval, the plaintiff sued Qualcomm and TransPower for negligence and premises liability, because he sustained third degree burns after coming into contact with a live electrical circuit. The Supreme Court reversed the lower courts’ denial of Qualcomm’s MSJ, concluding that “defendant Qualcomm Incorporated, the hirer in this case, owed no tort duty to plaintiff Martin Sandoval, the parts specialist working for Qualcomm's contractor, at the time of Sandoval's injuries.” (Id. at 265.) The court stated: “Although Qualcomm performed the partial power-down process that preceded the contractor's work and resulted in the presence of the live electrical circuit, we conclude on the record here that Qualcomm neither failed to sufficiently disclose that hazard under Kinsman nor affirmatively contributed to the injury under Hooker.” (Id.)
Sandoval is distinguishable from the facts of this case. Here, Plaintiffs are alleging that REW was negligent in failing to perform its contractual obligations to inspect the area where Kevin Rye’s work was being performed and to provide the safe workplace required by REW’s contract with DPR, thus causing or contributing to Plaintiff’s injuries. The Supreme Court’s decision in Sandoval did not reference any sort of affirmative obligation to ensure a safe worksite.
As cited in this Court’s ruling on the motion for summary judgment, section 18.1 of DPR’s contract with REW provides (emphasis added):
Subcontractor is responsible for ensuring that its subcontractors and suppliers and their employees comply with DPR’s safety requirements and the requirements of any Corrective Actions Plans agreed to between DPR and Subcontractor as a prerequisite of DPR’s qualification of Subcontractor. Subcontractor shall conduct inspections to determine that safe working conditions and equipment exist and accepts sole responsibility for: a) providing a safe work place for its employees and for employees of its subcontractors and suppliers; b) the adequacy of and required use of all safety equipment; and c) full compliance with the Laws. Subcontractor shall have sole responsibility for providing a safe workplace in performing his work and for its agents, employees, representatives, laborers, subcontractors and independent contractors and shall be solely responsible for ensuring that it complies with all applicable safety laws and regulations. [Defendant REW’s MSJ Exhibit “A1,” p. 19].
Because REW had an obligation to conduct inspections and provide a safe workplace, the Court finds that Sandoval does not warrant or require reconsideration of its prior order.
Likewise, the Parker deposition testimony does not warrant reconsidering and granting the MSJ, given the contract language cited above. At most, it supports that there is a disputed issue of material fact, as to whether Defendant owed and breached a duty to Plaintiff.
The Court further finds that Defendant has not shown diligence in bringing this motion. (See Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200 (“we hold that the diligence requirement applicable to motions to reconsider on the basis of different facts is also applicable to motions to reconsider on the basis of different law”); see also Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)
The deposition of Parker took place on 4/9/21. The California Supreme Court’s ruling in Sandoval was issued on 9/9/21. This motion was filed more than 6 months later on 3/24/22.
It is unclear how or why this evidence was unavailable to Defendant at the time it filed its MSJ. Defendant did not contend that it was not able to depose Parker before it filed its motion for summary judgment. Moreover, Defendant relied on a declaration from Parker to support its MSJ and its arguments regarding lack of control. So, it is clear Parker’s evidence was available to Defendant.
In its Reply brief, Defendant acknowledges this, stating that “while Parker provided a declaration, at the time the MSJ was filed, REW had no way of knowing what level of foundation the Court would require in considering his testimony as it evaluated the MSJ.” (Reply at pg. 5.) The Court previously sustained the objections to Parker’s declaration in ruling on the motion for summary judgment. Defense counsel is advised to consult the rules of evidence to determine the “level of foundation the Court would require” with respect to the admission of evidence.
There is an additional procedural ground for denying Defendant’s motion. Because Defendant’s motion is, in substance, a renewal of its prior summary judgment motion via a Code Civ. Proc., § 1008 motion for reconsideration, it was required to not only give 75 days notice, but also file a separate statement of undisputed facts.
In Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243, the trial court granted a motion for reconsideration of a summary judgment denial based on new evidence; Court of Appeal reversed:
Our concern, however, is that if we affirm
the trial court's ruling, we would endorse a procedural bypass to the due
process protections afforded a party opposing summary judgment
under section 437c. While Design technically moved for reconsideration
within the 10-day period under section 1008, subdivision (a), it was, in
effect, a renewed motion for summary judgment under section 1008, subdivision
(b) or section 437c, subdivision (f)(2). (See Graham v. Hansen (1982)
128 Cal.App.3d 965, 970, 180 Cal.Rptr. 604.) Therefore, Torres was
entitled to the procedural protections afforded to parties opposing summary
judgment, including 75 days’ notice and a separate statement of material
facts. (§ 437c, subds. (a)(2) & (b)(1); see UAS
Management, Inc. v. Mater Misericordiae Hospital (2008) 169
Cal.App.4th 357, 367, 87 Cal.Rptr.3d 81; Schachter v. Citigroup, Inc. (2005)
126 Cal.App.4th 726, 737–738, 23 Cal.Rptr.3d 920.) By granting the motion for
reconsideration and then summary judgment at the same time, the trial court
failed to enforce these protections and abused its discretion.
[Emphasis added.]
Similarly in UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367–368 (emphasis added), the court explained:
In general, a party may move for reconsideration of a motion within 10 days after the motion is denied, based upon “new or different facts, circumstances, or law.” (Code Civ. Proc., § 1008, subd. (a).) In addition, after expiration of the 10–day period to move for reconsideration, a party “may make a subsequent application for the same order upon new or different facts, circumstances, or law.” (Code Civ. Proc., § 1008, subd. (b).) Such a motion does not seek reconsideration of the earlier motion but, instead, is simply a new motion that is permitted by the existence of new law or facts—in effect, it renews the earlier motion by submission of a new motion raising the same issues. The overriding purpose of Code of Civil Procedure section 1008 is to prevent duplicative motions. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1106, 29 Cal.Rptr.3d 249, 112 P.3d 636.)
***
Under both Code of Civil Procedure sections 1008, subdivision (b), and 437c, subdivision (f)(2), the motion made more than 10 days after an original motion is a new motion. Both sections authorize the new motion under prescribed circumstances but Code of Civil Procedure section 1008, subdivision (b) does not purport to authorize a new summary judgment motion that does not comply with the requirements for such motions set out in Code of Civil Procedure section 437c.
Motions for summary judgment may be brought only under Code of Civil Procedure section 437c and in accordance with its requirements. Respondent's renewed motion for summary judgment did not comply with Code of Civil Procedure section 437c in any way, and respondent contended it did not have to. For reasons set forth above, we conclude the motion was required to provide 75 days notice and to be supported by a separate statement of undisputed material facts, as required by Code of Civil Procedure section 437c, subdivisions (a) and (b). The court was without authority to shorten the minimum notice for the motion over appellant's objection. (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115, 130 Cal.Rptr.2d 407.)
Defendant did not file a separate statement with its renewed motion for summary judgment. Based on the foregoing case law, it would violate Plaintiff’s due process rights to grant Defendant’s motion and enter summary judgment in Defendant’s favor.
For all of the reasons stated above, the Motion is denied.
Plaintiffs are ordered to give notice.