Judge: Michael L. Stern, Case: 22TCV32837, Date: 2024-01-24 Tentative Ruling


Case Number: 22TCV32837    Hearing Date: January 24, 2024    Dept: 62

Tentative Ruling

Judge Rolf Treu

Department 62

Hearing Date:                                  Wednesday, January 24, 2024               

Case Name:                                      Shawn King v. Blouin & Company, Inc. et al.

Case No.:                                           22STCV32837

Motion:                                              Motion for Reconsideration

Moving Party:                                 Defendants - Blouin & Company, Inc., David Blouin, and Robert Cinelli    

Responding Party:                         Plaintiff - Shawn King

Notice:                                                OK

Tntative Ruling:                             DENY

 

BACKGROUND

 

On October 6, 2022, Plaintiff Shawn King (“Plaintiff”) commenced the present action against Defendants Blouin & Company, Inc., Robert Cinelli, David Blouin, Becky Radant, Christy Wise, Devonshire Delaware, Greg Christensen, Lizanne Engemann, Shannon Engemann Grossman, Sydney Gail Stayden, Tali Flying LP, and Does 1 through 50. Plaintiff alleges following causes of action: Professional Negligence, Breach of Fiduciary Duty, Fraud, Conversion of Community Property, Equitable and/or Implied Indemnity, Accounting of Community Property, Set Aside of Transfer of Community Property without Spousal Consent, Imposition of Constructive Trust, Declaration that Gifts of Community Personal Property Are Void, and Negligent/Intentional Infliction of Emotional Distress,

 

On December 21, 2022, Defendants Blouin & Company, Inc., David Blouin, and Robert Cinelli filed their Cross-Complaint against Plaintiff, Larry King Enterprises, Inc., LK Productions Inc., LK Aircraft LLC, and La Perla Publishing, Inc. for Breach of Written Contract, Breach of Oral Contract, Account Stated, Unjust Enrichment, Money Had and Received, Quantum Meruit, Common Count, and Goods and Services Rendered.

 

On December 30, 2022, Defendants Blouin & Company, Inc., David Blouin, and Robert Cinelli filed their Amended Cross-Complaint to include Roes 1 to 25.

 

On June 20, 2023, the Court entered an Order granting Defendant Greg Christensen’s Special Motion to Strike Pursuant to C.C.P. § 425.16 In Its Entirety.

 

On July 28, 2023, Plaintiff filed a Notice of Appeal, appealing the Order dated June 20, 2023.

 

On September 7, 2023, the Court entered a Minute Order, staying the proceedings due to the filing of Plaintiff’s appeal.

 

On September 26, 2023, Defendants Blouin & Company, Inc., David Blouin, and Robert Cinelli (“moving Defendants” or “Blouin Defendants”) filed the instant Motion for Reconsideration of the Court’s September 7, 2023 Minute Order.

 

On January 10, 2024, Plaintiff opposed the instant motion and subsequently, on January 17, 2024, the moving Defendants replied.

 

MOVING PARTY’S ARGUMENTS

              

(1)   The motion is timely made.

 

(2)   New and different facts or circumstances justify allowing discovery to continue between the Blouin Defendants and Plaintiff on causes of action unrelated to Plaintiff’s appeal.

OPPOSITION ARGUMENTS

             

(1)   The motion was untimely filed.

 

(2)   The motion lacks merits as it does not show any new and different facts or circumstances.

REPLY ARGUMENTS

 

(1)   The Court should, despite the motions’ untimely filing, exercise its discretion to hear it, asserting that the delay, while a mistake, did not cause prejudice to Plaintiff.

 

(2)   The Court has inherent power to reconsider its own ruling, citing Le Francois v. Goel (2005) 35 Cal.4th 1094.

 

ANALYSIS

I.                   Legal Standards

Under Code of Civil Procedure section 1008 subdivision (a) provides, it is stated, in part, that “[w]hen an application for an order has been made to judge, or to a court, … 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 new or different facts, circumstances, or law are claimed to be shown.” (Underlines added.)

“If a court at any time determines that there has bee a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” (Code Civ. Proc., § 1008, subd. (c).)

“This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008, subd. (e).)

II.                Analysis of Compliance with Code of Civil Procedure Section 1008 Requirements

 

A.                Timeliness

The moving Defendants assert in their moving papers that the instant motion was filed timely. (Mot., at p. 4.)

Code of Civil Procedure section 1008 requires that an application for reconsideration must be made “within 10 days after service upon the party of written notice of entry of the order.” (Code Civ. Proc., § 1008, subd. (a).)

Here, the Minute Order was entered on September 7, 2023. Plaintiff’s counsel then provided written notice of this Order to all parties by email on September 11, 2003, establishing the ten-day time limit to expire on September 21, 2023. The instant motion was filed on September 26, 2023, five days after the deadline. Furthermore, the moving Defendants admit that they overlooked the emailed notice from Plaintiff’s counsel, and mistakenly believed that the notice of entry of the Minute Order had not been made. (Everson Decl., ¶¶ 2-3.)

Therefore, the moving Defendant’s initial assertion about timeliness is not correct. The Court finds that the instant motion was filed late.

B.                 New of different facts, circumstances, or law

Neither the instant motion nor its supporting Declaration offers any new or different facts that would warrant reconsideration of the Court’s September 7, 2023 Minute Order.

Code of Civil Procedure section 1008 explicitly states that a motion made under this section must be “based upon new or different facts, circumstances, or law… The party making the application shall state by affidavit what application was made before, … and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008, subd. (a).)

The moving Defendants argue that “new and different facts or circumstances justify continuing discovery (Mot., at p. 4.),” and claim that the Court should proceed with matters that are not embraced in or affected by the appeal, citing the cause of action under appeal, distinct from those against the Blouin Defendants, do not affect the discovery or other proceedings, citing Code of Civil Procedure section 916. (Mot., at p. 5.) However, the Court is not persuaded by this argument.

First, the difference in the causes of action alleged against various Defendants does not by itself constitute any “new or different facts, circumstance, or law” justifying reconsideration. The Court notes that these causes of action have remained unchanged before the entry of the Minute Order in question. Consequently, the Court has already considered all relevant facts present at the time of the order.  Therefore, these existing or unchanged facts fail to meet the required conditions for reconsideration under section 1008, as doing so would render this section’s requirement meaningless.

Second, Code of Civil Procedure section 1008 subdivision (e) explicitly states that “[n]o application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section,” necessitating a clear demonstration of compliance by the moving parties before the Court proceeds to consider substantive merits.

As discussed above, the Court determines that the instant motion does not meet the Code requirements. Additionally, the Court need not address the argument based on Code of Civil Procedure section 916, since section 1008 precludes the review on merits if the motion is not made according to its provisions.

C.                Defendants’ mistake as excusable neglect

In their Reply, the moving Defendants acknowledge that their attorneys overlooked the email regarding the notice of entry from Plaintiff’s counsel on September 11, 2023, leaving them unaware of the deadline for filing the instant motion and believing in good faith that their filing was timely. (Reply, at p. 4). Despite this, the moving Defendants argue that the motion should be considered on its merits, asserting that the delay was a mistake and caused no prejudice to Plaintiff. (Reply, at p. 4.)

As the instant motion was filed under the authority of Code of Civil Procedure section 1008, the Court assesses whether the moving Defendant’s stated reasons align with this section.

“The expression of somethings in a statute necessarily means the exclusion of other things not expressed.” (Gikas v. Zolin (1993) 6 Cal.4thh 841, 852.)

Code of Civil Procedure section 1008 does not recognize mistakes or excusable neglect as valid reasons to override any non-compliance with its provisions. Additionally, the moving Defendants’ claim that Plaintiff has suffered no prejudice due to the late filing is irrelevant. Even assuming it is true, this consideration, not specified in the Code section, cannot supersede the section’s expressed requirements.

Accordingly, this argument lacks merit.

A.                The Court’s inherent power to reconsider

“No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008, subd. (e).)

The moving Defendants rely on Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), contending that the Court nevertheless has inherent power to reconsider its previous order.

The Court agrees that Le Francois is instructive but disagrees with the moving Defendants’ conclusion.

In Le Francois, the Supreme Court addressed whether a court’s inherent power to reconsider its own ruling applies both to actions taken sua sponte and those made in response to a litigant’s motion. There, the defendants argue that “the line … between impermissible action by a court on a party’s initiative and permissible action by a court on its own makes no constitutional sense. What is determinative is whether there is error to correct, not who discerns the error’s existence.” The Supreme Court rejected this argument. (Le Francois, supra, 35 Cal.4th at p. 1103.)

The Supreme Court stated that “unless the requirements of section 437c, subdivision (f)(2) [not applicable here], or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion.” (Id., at p. 1108.) It explained that the 1992 amendment to section 1008 aimed to “conserve judicial resources…. This legislative purpose is advanced if section 1008 is understood to apply to the actions of the parties, not to a court’s sua sponte reconsideration of its own interim order.” (Id., at p. 1106.) The Supreme Court also noted that “absent section 1008, trial court might themselves inundated with reconsideration motions requiring that they rehash issues upon which they have already ruled and about which they have no doubt.” (Ibid.)

An example was also illustrated in the Le Francois case, “for example, nothing would prevent the losing party from asking the court at a status conference to reconsider a ruling. (Citations.) But a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section 437c, subdivision (f)(2) [not applicable here], or 1008.” (Id., at 1108.)

As previously discussed, the instant motion does not meet the procedural requirement for timeliness, or the substantive requirement of presenting new or different facts, circumstances, or law. Accordingly, review of a reconsideration initiated by a litigant’s motion is prohibited under Code of Civil Procedure section 1008 subdivision (e). Following the ruling and interpretation of Le Francois, the Court’s inherent power to reconsider its own ruling does not apply in response to a litigant’s motion.[1], [2]

III.             Conclusion

The Court denies the Motion for Reconsideration.


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