Judge: Michael E. Whitaker, Case: 20STCV08741, Date: 2023-03-24 Tentative Ruling

Case Number: 20STCV08741    Hearing Date: March 24, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

             Plaintiff Gretchen Smith (Plaintiff) sued Defendant Moss Management Services, Inc. (Defendant) based on a slip and fall incident on a sidewalk.  In its January 9, 2023 Minute Order, the Court denied the motion by Defendant for Common Law Judgment on the Pleadings (CLMJOP).  Defendant now brings this renewed CLMJOP pursuant to Code of Civil Procedure section 1008, subdivision(b), asserting there are new or different facts, circumstances, or law warranting a second motion.  Plaintiff opposes the motion.  Defendant replies.

ANALYSIS

A renewal of motion is brought pursuant to Code of Civil Procedure section 1008, subdivision (b).  That section provides:

A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(Code Civ. Proc., § 1008, subd. (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.) 

            Here, Defendant advances the case of Columbus Line, Inc. v. Gray Line Sight-Seeing Companies Associated, Inc. (1981) 120 Cal.App.3d 622, asserting, because that case was not cited in the original CLMJOP, it constitutes new or different law, and thus establishes grounds for the instant renewed motion.  However, the Court notes, and as Plaintiff highlights in her opposition, Defendant’s cited case is over forty years old.  Further, Defendant has failed to give a satisfactory explanation as to why it could not have uncovered this forty-year-old case previously with a reasonable amount of diligence, which is required pursuant to Section 1008.  (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1200.). Defendant has thus failed to present new or different facts, circumstances, or law demonstrating to the Court that the Court’s order of January 9, 2023, denying Defendant’s CLMJOP should be reconsidered, or further granted.

CONCLUSION AND ORDER

            Therefore, the Court denies Defendant’s motion for renewed CLMJOP.   The Clerk of the Court shall provide notice of the Court’s ruling.