Judge: Michael E. Whitaker, Case: 21STCV05930, Date: 2023-10-17 Tentative Ruling

Case Number: 21STCV05930    Hearing Date: January 11, 2024    Dept: 207

TENTATIVE RULING

MOTION

            This case arises from injuries Plaintiff Rodrigo Castillo (“Plaintiff”) sustained after falling 20 feet from a tree he was trimming on the property of Defendants Steven Fein and Sheila Fein (“Defendants”). 

The Court granted Summary Judgment in Defendant’s favor on the basis that the Plaintiff assumed the risk in agreeing to climb and trim the tree.  (June 21, 2023 Minute Order.)

Plaintiff moved for a new trial, which the Court denied, having found no irregularity in the court proceedings, abuse of discretion, error in law, or insufficiency of the evidence.  (October 17, 2023 Minute Order.) 

Plaintiff now moves for reconsideration of the Court’s order denying a new trial.    Defendants have opposed the motion and Plaintiff has replied.

EVIDENTIARY OBJECTION

            Defendants object to the late declaration of Alexander Zeesman and accompanying exhibits that were purportedly filed on October 17, 2023, although the Court has no record of this declaration or exhibits as being filed with the Court until the current motion for reconsideration. 

            Code of Civil Procedure section 659a provides:

Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion. The other parties shall have 10 days after that service within which to serve upon the moving party and file any opposing briefs and accompanying documents, including counter-affidavits. The moving party shall have five days after that service to file any reply brief and accompanying documents. These deadlines may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days.

            Plaintiff moved for a new trial on September 1, 2023.  Thus, the opposition was due by September 11, 2023, and the reply due by September 16.  Even if the declaration and exhibits were appropriate to include as reply evidence and even if Plaintiff had shown good cause for failing to file it sooner by affidavit or written stipulation, the absolute latest date the Court had jurisdiction to consider it was September 26.  The Court has no record of this declaration being filed with the Court until November 9, when the current motion for reconsideration was filed.

            Therefore, Defendants’ objection is sustained as the Court lacks jurisdiction to consider the belated Zeesman declaration or supporting exhibits.

LEGAL STANDARD

Under Code of Civil Procedure section 1008, subdivision (a), “[w]hen 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 an 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.”  (Code Civ. Proc., § 1008, subd. (a).)  Where the statutory requirements are met, reconsideration should be granted; upon reconsideration, however, the court may simply reaffirm its original order.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) 

The moving party on a motion for reconsideration “must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time[.]” (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, internal quotations & citations omitted; see New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 221 [on a motion for reconsideration, a party must present new or different facts, circumstances, or law, which the moving party “could not, with reasonable diligence, have discovered or produced” in connection with the original hearing].)

ANALYSIS

Code of Civil Procedure section 660, subdivision (c) provides:

Except as otherwise provided in Section 12a of this code [extending dates that fall on a weekend or court holiday to the next court day], the power of the court to rule on a motion for a new trial shall expire 75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial.

“The 60-day limitation period of section 660 is mandatory and jurisdictional.”  (Jones v. Sieve (1988) 203 Cal.App.3d 359, 369.)  With respect to the intersection between a Section 1008 motion for reconsideration and a Section 660 motion for a new trial, Jones court held:

[T]he power of a trial court to rule on a motion for a new trial is constrained by the jurisdictional 60-day limitation period of section 660, which is a specific statute, and cannot be extended or expanded by 0the procedural device of moving under section 1008, a general statute, for reconsideration of an order granting or denying a new trial motion, which necessarily involves a request to correct judicial error.

Instead, the onus is on the party seeking reconsideration under section 1008, of an order granting or denying a new trial, to do so within the 60-day jurisdictional time frame.

(Id. at p. 370; see also Collins v. Sutter Memorial Hosp. (2011) 196 Cal.App.4th 1, 11 [“An order made after the 60–day period purporting to rule on a motion for new trial is in excess of the court's jurisdiction and void”].)

            Here, the notice of entry of judgment was served electronically on August 10, 2023.  Therefore, by October 26, 2023 (75 calendar days + 2 court days for service), the Court had lost the jurisdiction to grant a motion for a new trial.  However, Plaintiff did not file the instant motion for reconsideration until November 9, after the jurisdictional limitations period set forth in Section 660 has expired.

CONCLUSION AND ORDER

            Therefore, Plaintiff’s motion for reconsideration is denied as the Court is without authority to rule on the underlying motion for new trial under Code of Civil Procedure section 660.

            The Clerk of the Court shall provide notice of the Court’s ruling.    

DATED:  January 11, 2024                            ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court