Judge: Michael P. Linfield, Case: 22STCV05772, Date: 2023-04-24 Tentative Ruling

Case Number: 22STCV05772    Hearing Date: April 24, 2023    Dept: 34

SUBJECT:         Motion for Reconsideration

Moving Party:  Plaintiff Caroline Lee

Resp. Party:    Defendants United Escrow Co., Tracy Ko, and Douglas Chadwick Biggins

The Court DENIES Plaintiff Caroline Lee’s Motion for Reconsideration.

BACKGROUND:

On February 15, 2022, Plaintiff Caroline Lee filed her Complaint against Defendants United Escrow Co., Tracy Ko, and Douglas Chadwick Biggins on causes of action of intentional tort and exemplary damages attachment.

On May 24, 2022, the Court granted Defendant United Escrow Co.’s Motion to Strike Complaint Pursuant to CCP § 425.16.

On February 17, 2023, Plaintiff’s Counsel, Jack H. Karpeles, filed his Declaration and Notice of Medical Emergency.

On February 21, 2023, Plaintiff’s Counsel filed his Supplemental Declaration and Notice of Medical Emergency.

On February 21, 2023, the Court dismissed with prejudice the Complaint because there was no appearance by or for Plaintiff, nor any communication with the Court as to why there was no appearance by or for Plaintiff on this date.

On March 7, 2023, Plaintiff filed her Motion for Reconsideration. Plaintiff concurrently filed: (1) Memorandum of Points and Authorities (“Memorandum”); (2) Declaration of Counsel; (3) Exhibits 1 and 2; and (4) Proof of Service.

On April 11, 2023, Defendants filed their Opposition.

On April 17, 2023, Plaintiff filed her Reply.

On April 18, 2023, Plaintiff filed the Proof of Service for her Opposition.

On April 19, 2023, Plaintiff filed: (1) Proposed Order; (2) Attachments A, B and C; and (3) Proof of Service.

ANALYSIS:

I.           Legal Standard

“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.” (Code of Civ. Proc., § 1008, subd. (a).) 

II.        Discussion

A.      The Parties’ Arguments

Plaintiff moves the Court to reconsider its Ruling on February 21, 2023 dismissing with prejudice Plaintiff’s Complaint in this matter.

Plaintiff argues that Plaintiff’s Counsel was impaired such that it was “unreasonably difficult” for Plaintiff’s Counsel to effectively carry out his legal representation on the date of trial. (Memorandum, p. 1:20–23.) Plaintiff cites Declaration of Jack H. Karpeles and Notice of Medical Emergency (filed Friday, February 17, 2023 at 4:38 p.m.) and Supplemental Declaration of Jack H. Karpeles and Notice of Medical Emergency (filed Tuesday, February 21, 2023 at 12:06 a.m.) in support of the Motion, claiming that this is evidence of new or different facts or circumstances that would support reconsideration of the Court’s Ruling. (Memorandum, pp. 1:24–27, 2:1–4.) Further, Plaintiff’s Counsel declares that on February 15, 2023, he was placed by a doctor in “off work status until February 20, 2023” and that he was treated “for dizziness and blunt head injury on February 21, 2023.” (Decl. of Counsel, ¶ 6.)

Defendants oppose the Motion. Defendants make multiple procedural and substantive arguments, some of which are not directly related to the Motion. (Opposition, pp. 1–3.) Among other things, Defendants note that they would stipulate to granting the Motion on the precondition that the previously-awarded sanctions are paid. (Id. at 1:24–27.)

Plaintiff makes two arguments in her Reply: (1) the Opposition makes no contrary evidence contesting the health status of Plaintiff’s Counsel; and (2) the merits of this case were not reached in the appellate opinion Defendants discussed in their Opposition. (Reply, pp. 1:22–27, 2:1–3.)

B.      Reconsideration is Not Warranted Here

For the following reasons, the Court is not persuaded that reconsideration of its Ruling on February 21, 2023 is warranted.

First, the information presented by Plaintiff’s counsel does not constitute new or different facts or circumstances. The Declaration of Jack H. Karpeles and Notice of Medical Emergency was filed near the end of normal processing hours on a Friday, February 17, 2023. The Court was aware of this information prior to the OSC re dismissal on Tuesday, February 21, 2023. Thus, the information submitted does not constitute new or different facts or circumstances.

Second, Plaintiff misapprehends the Court’s Ruling. The Ruling stated in relevant part: “There is no appearance by or for Plaintiff, nor any communication with the Court as to why there is no appearance by or for Plaintiff this date. The Court orders the Complaint filed by Caroline S. Lee on 02/15/2022 dismissed with prejudice.” (Minute Order, dated February 21, 2023.) Spelled out, the issue was not just that Plaintiff’s Counsel did not appear — it was that Plaintiff did not appear and nobody appeared on behalf of Plaintiff and nobody communicated with the Court why there was no appearance by or for Plaintiff.

Third, Plaintiff misunderstands the nature of the hearing on February 21, 2023.  Trial had originally been scheduled for February 21, 2023, with a Final Status Conference scheduled for February 8, 2023.  Plaintiff did not appear at the FSC and did not file any of the required FSC documents.  On February 8, 2023, the Court vacated the trial date and set an OSC re dismissal for February 21, 2023, the originally-scheduled trial date.  Nine days after the FSC, Plaintiff’s counsel filed a declaration with the Court indicating that his “mental or physical condition presently renders it unreasonably difficult for him to continue to effectively carry out his legal representation of Plaintiff.”  (Karpeles Declaration, ¶ 4, filed 2/17/23 at 4:08 pm.)  There is no indication that counsel was unable to prepare the FSC documents or appear in Court at the FSC.  Further, the doctors’ reports attached to the declaration are from August 30, 2022 and October 20, 2022 – i.e., four to six months before the hearing date.  Neither report indicates that counsel would be unable to function for the next six months. 

Finally, even assuming that these were new facts and that Plaintiff correctly ascertained the Court’s Ruling, the evidence provided still does not weigh Plaintiff’s favor. Plaintiff’s counsel provides evidence that he has a recurring genetic condition that he has been aware of since at least August 2022. This condition placed Plaintiff’s Counsel in “off work” status from August 17, 2022 through September 17, 2022 and November 5, 2022 through November 19, 2022. (Decl. Jack Karpeles, Exhs. A–B.) The Court has the utmost sympathy for any individual with an illness, be they parties, witnesses or counsel. However, counsel have additional responsibilities to their clients, to opposing counsel, and to the Court. Among these duties is the responsibility to meet the professional standard of care. It is below the professional standard of care to not have a proper contingency plan in case for a recurring illness of which counsel has prior notice. There is no evidence that there was such a plan. Further, the Court notes that Plaintiff’s Counsel has not submitted a doctor’s note that would indicate that there actually was a recurrence in February 2023 of the illness at issue.

Nor is this the first time that Plaintiff’s counsel has failed to meet his obligations to his client or the Court.  Plaintiff’s counsel filed a deficient 2-page opposition to a dispositive anti-SLAPP motion.  (See “Preliminary Comments,” Minute Order of 5/24/22.)  Plaintiff’s counsel was sanctioned for not timely filing their Case Management Statement; it was filed just two days prior to the Case Management Conference, not 15 days prior to the CMC as required to the California Rules of Court, Rule 3.725.  (See Minute Order, 6/17/22.)  Plaintiff filed a frivolous Motion for Reconsideration and was sanctioned $6,060.00 under CCP §128.7.  (See Minute Order, 10/27/2022.)

Plaintiff’s counsel has a history of neglecting his duties to his client and the Court.  If this neglect was indeed caused by ongoing medical issues, counsel had the obligation to notify the Court and ask to be relieved as counsel.  He never did so.

III.     Conclusion

Plaintiff’s Motion for Reconsideration is DENIED.