Judge: Mary H. Strobel, Case: 22STCP02545, Date: 2023-05-04 Tentative Ruling

Case Number: 22STCP02545    Hearing Date: May 4, 2023    Dept: 82

            Petitioner Marvin Brown (“Petitioner”) moves for reconsideration pursuant to CCP section 1008 of this court’s order dated March 21, 2023, sustaining a demurrer filed by Respondent City of Los Angeles (“City”), acting by and through the Los Angeles Department of Water and Power (“LADWP” or “Respondent”), with leave to amend, to the first cause of action in the second amended petition for writ of mandate filed by Petitioner.

Background

            The second amended petition (“SAP”) concerns LADWP’s Request for Proposal No. 90654 for Credit Risk Consulting Services, which was released on or about October 28, 2021.  (See SAP ¶¶ 9-84; RJN Exh. H.)  The Maverick Consulting Group, LLC (“Maverick”) submitted a proposal in response to RFP No. 90654.  (SAP ¶ 49; RJN Exh. A-C.)  Petitioner alleges that he is the “Principal Consultant” for Maverick, and he verified the SAP as “Independent Consultant and managing member of the Maverick Consulting Group, LLC.”  (SAP ¶ 28 and Verification at p. 28.) 

            Petitioner alleges that LADWP wrongfully recommended to award RFP No. 90654 to non-party Pandora Consulting Associates, LLC (“Pandora”), in violation of various state, local, and federal laws.  Petitioner filed a protest of the recommendation, which was denied.  Petitioner’s appeal of the denial of his protest was also denied.  (See SAP ¶¶ 4-69, 73-84; RJN Exh. A-C.) 

Relevant Procedural History

            On July 8, 2022, Petitioner, in pro per, filed a petition for writ of mandate to compel compliance with the California Public Records Act and Public Contract Code, and a complaint for declaratory and injunctive relief.  On July 26, 2022, Petitioner filed a first amended petition for the same causes of action. 

            On September 19, 2022, Petitioner filed a motion for leave to file second amended petition. 

            On November 17, 2022, after a hearing attended by counsel for Respondent, the court granted Petitioner’s motion for leave to amend.  The court held a trial setting conference and set the petition for hearing on August 29, 2023.  The court stayed all non-writ causes of action until the writ cause of action is ruled on by the court.

            On December 16, 2022, Respondent filed and served a demurrer and a meet and confer declaration pursuant to CCP section 430.41(a). 

            On January 3, 2023, the court denied Petitioner’s ex parte application to strike the demurrer.  The court advised Petitioner that defaults are not available as a remedy in petitions for writ of mandate.  After Petitioner stated he had not yet received the demurrer, Respondent’s counsel served Petitioner in open court with the demurrer.

            On February 21, 2023, Petitioner filed his opposition to the demurrer.  On March 13, 2023, Respondent filed and served the reply.

            On March 21, 2023, after a hearing, the court sustained Respondent’s demurrer, with 45 days leave to amend, to the first cause of action in the petition.  The court overruled the demurrer to the second cause of action.  The court’s minute order dated March 21, 2023, discusses the reasons the court sustained the demurrer to the first cause of action; granted Respondent’s request for judicial notice in support of the demurrer; and overruled Petitioner’s objections to judicial notice.  That discussion is not repeated here but is incorporated by reference. 

Analysis

Legal Standard

Code of Civil Procedure section 1008 governs applications to reconsider and provides, in relevant part:

(a)  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.

….[¶]

(e) This section specifies the court's jurisdiction.... No application to reconsider any order … may be considered by any judge or court unless made according to this section.

When a motion for reconsideration is based on alleged new or different facts, it is not sufficient for the moving party merely to adduce facts not previously presented to the court.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690.) Facts that were known to a party at the time of the hearing or ruling on the order sought to be reconsidered, by their very nature, are not “new” or “different.”  (Id. at 690.) Furthermore, that party must show that reasonable diligence was used in uncovering all pertinent facts before the original motion was made.  (Forrest v. State of California Dept. of Corporations (2007) 150 Cal.App.4th 183, 202, disapproved of on other grounds by Shalant v. Girardi (2011) 51 Cal.4th 1164.)  The moving party must provide a “satisfactory explanation for the failure to produce [the] evidence at an earlier time.”  (Garcia, supra at 690.) 

Petitioner Does Not Show Grounds For Reconsideration

Petitioner seeks reconsideration of the court’s ruling on demurrer dated March 21, 2023.  In his declaration and motion, Petitioner summarizes the arguments made in his opposition to the demurrer; his contention that the SAP is well pleaded; and the reasons he contends that the court should have overruled the demurrer based on his opposition arguments and evidence.  Petitioner states that he “presented these facts to the court; nevertheless, the demurrer was sustained with leave to amend.”  (Brown Decl. p. 1, last para.)  Petitioner also states that contentions made by Respondent in its demurrer were “false and misleading”; that Respondent improperly relied on extrinsic evidence with its request for judicial notice; that Respondent did not timely serve the demurrer; and that Respondent did not engage in proper meet and confer for the demurrer.  (Mot. 2-5, 7-13; Reply 4-10; and Brown Decl. p. 1.)  Petitioner also states that the SAP “presents copious evidence of a fraudulent scheme and conspiracy to illegally channel money out of [LADWP]” and that this “evidence was presented in Petitioner’s Opposition, Objection, and motion to strike the demurrer.”  (Brown Decl. p. 2.)  Petitioner reiterates his arguments, which he made in opposition to the demurrer, that Maverick and Pandora are not indispensable parties.  (Mot. 10-11; Reply 4-8.) 

Thus, in summary, Petitioner contends that the court erroneously ruled on the demurrer and arguments and evidence that were already presented in Petitioner’s opposition to the demurrer.  However, the court already considered Petitioner’s opposition to the demurrer and supporting records.  Petitioner does not identify new or different facts, circumstances, or law within the meaning of section 1008.   “According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’”  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) 

Petitioner seems to contend that the effect of the court’s ruling on demurrer is a new fact or circumstance under section 1008.  He argues that the court’s ruling “would bar the Petitioner’s right to self-representation and expose his firm to litigation that it cannot afford.”  (Brown Decl. p. 2, para. 2.)  Petitioner requests that the court permit him to “continue his self-representation.”  (Mot. 3; see also Mot. 9-11 and 14:11-13.)  The court did not bar Petitioner from representing himself in this action.  Rather, the court ruled that, for the first cause of action, Petitioner has not pleaded standing to sue on behalf of Maverick and that Maverick is an indispensable party.  As to the second cause of action, the court overruled the demurrer.  Petitioner may continue to represent himself in his CPRA claim.

While it is unfortunate that Maverick cannot afford an attorney as Petitioner alleges, Maverick is an indispensable party to the first cause of action for the reasons stated in the March 21, 2023, ruling.  (Minute Order dated 3/21/23 at 5-7.)  A corporate entity must be represented by legal counsel.  (See Merco Const. Engineers, Inc. v. Mun. Ct. (1978) 21 Cal. 3d 724, 731.)  Petitioner cites no authority that there is an exception to this rule, when a corporation claims it cannot afford to hire an attorney.  

            Petitioner argues “the court assumed the contract had been awarded by the Board of Commissioners, which was implied by Respondent’s demurrer.”  (Brown Decl. p. 1.)  That is not correct.  The court’s ruling repeatedly noted that Petitioner alleges that LADWP “wrongfully recommended” to award the RFP to Pandora and challenged LADWP’s “recommendation” to award the RFP to Pandora.  The ruling does not state that LADWP made a final award to Pandora.  (See Minute Order dated 3/21/23 at 2-6.)

The court has considered all arguments in Petitioner’s motion and reply.  Petitioner does not show any new or different facts, circumstances, or law within the meaning of CCP section 1008.  The court would not change its ruling on demurrer even if it granted reconsideration. The court’s ruling dated March 21, 2023, fully explains the reasons the court sustained the demurrer to the first cause of action, granted Respondent’s request for judicial notice, and overruled the procedural objections made by Petitioner.  The court does not repeat that ruling here.

            The motion for reconsideration is DENIED.

Petitioner’s Other Contentions

            In addition to the motion for reconsideration, Petitioner also makes a “Request for Conference Sua Sponte” and to “Bifercate Writ and Stay Complaint Pending Ruling.”  (Mot. 1.)  It is unclear what Petitioner is seeking in his request for a “conference sua sponte.”  Petitioner may address this at the hearing.  Petitioner cites to CCP section 430.41(b), but does not explain how that section is relevant.  (Mot. 14.)  Petitioner may have intended to rely on CCP section 430.41(c), which authorizes the court to order the parties to conduct additional meet and confer after the court sustains a demurrer to a cause of action with leave to amend.  Under these circumstances, the court does not find further meet and confer would be beneficial before Petitioner amends the petition.  However, if Respondent demurs to any amended petition, it shall comply with the meet and confer requirement of CCP section 430.41(a).   

            Petitioner asks the court to “maintain the court’s original order to stay all matters except the writ of mandamus.”  (Mot. 13:24-28.)  At the TSC, the court already stayed the third through seventh causes of action until the court rules on the writ causes of action.  Nothing about the court’s ruling on the demurrer changes that order. 

Petitioner states that he needs evidence from a subpoena or his CPRA requests, at issue in the second cause of action, before he can litigate the first cause of action and amend his pleading.  (Mot. 3:9-12; Reply 5:13-21 and Reply 11.)  Petitioner has scheduled a motion to compel discovery and compliance with subpoena for June 15, 2023.  Petitioner does not explain how any of the discovery or CPRA requests would enable him to amend the pleading to show he has individual standing on the first cause of action or that Maverick and Pandora are not indispensable parties.  Petitioner may address this at the hearing.

Conclusion

            Subject to further argument, the motion is denied.