Judge: Michael P. Linfield, Case: BC697147, Date: 2022-10-27 Tentative Ruling
Case Number: BC697147 Hearing Date: October 27, 2022 Dept: 34
SUBJECT: Motion
for Reconsideration
Moving Party: Plaintiff
Caroline Lee
Resp. Party: Defendant Bow Tie Realty & Investment, Inc.
Plaintiff
Caroline Lee’s Motion for Reconsideration is DENIED.
BACKGROUND:
1.
Breach
of Contract and Resulting Trust
2.
General
Negligence
3.
Intentional
Tort: Breach of Fiduciary Duty
4.
Intentional
Tort: Breach of Fiduciary Duty
5.
Breach
of Contract
6.
General
Negligence
7.
Intentional
Tort: Breach of Fiduciary Duty
8.
Intentional
Tort: Breach of Fiduciary Duty
On March 21, 2022,
Judge David Sotelo issued an order relating cases BC697147 and 22STCV05772.
(Minute Order, filed April 4, 2022, p. 1.)
On April 25, 2022,
Defendant United Escrow Co. and Intervenor Bow Tie Realty & Investment,
Inc. separately moved for attorney’s fees incurred on appeal No. B308739.
United requests $24,075.00 in attorney’s fees; Bowtie seeks $65,737.50 in
attorney’s fees.
On August 17, 2022,
Defendant Bowtie filed its Motion to Enforce/Exhaust the Appeal Bond in the
Amount of $122,801.24.
On September 22,
2022, the Court granted the Motion to Enforce/Exhaust the Appeal Bond in the Amount
of $122,801.24.
On October 3, 2022,
Plaintiff filed her Motion for Reconsideration regarding the Minute Order dated
September 22, 2022. Plaintiff concurrently filed: (1) Points and Authorities;
(2) Exhibit List; and (3) Declaration in support of her Motion for
Reconsideration.
On October 13, 2022,
Defendant Bowtie filed its Opposition to Motion for Reconsideration.
Plaintiff has not
filed a reply or other response to Defendant Bowtie’s Opposition to Motion for
Reconsideration.
ANALYSIS:
I.
Legal
Standard
Pursuant to Code of Civil Procedure Section 1008, subdivision (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.” (Code of Civ. Proc., § 1008, subd. (a).)
As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.
App. 4th 1494, 1499, 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.” There is a strict requirement of diligence, meaning the
moving party must present a satisfactory explanation for failing to provide the
evidence, different facts, or law earlier. (Garcia v. Hejmadi (1997) 58
Cal. App. 4th 674, 690.)
II.
Discussion
Plaintiff moves the Court to: (1)
reconsider its Order dated September 22, 2022 granting Defendants’ Motion to Enforce / Exhaust the Appeal Bond
in the Amount of $122,801.24; and (2) report Defendants’ Counsel, Chad Biggins,
to the California State Bar. (Motion for Reconsideration, p. 3:23–24.)
Defendant opposes the Motion for
Reconsideration, arguing that there are no new facts to support the motion and
that the issue asserted is red herring. (Opposition to Motion for
Reconsideration, p. 1:22–26.)
Plaintiff did not submit a
reply or another response to Defendant’s Opposition.
The Court notes that this
is the third motion in one week in which Plaintiff’s Counsel has repeated the same
arguments that have repeatedly been rejected as frivolous. In the related case,
Lee v. United Escrow, the Court indicated its concern that Attorney Karpeles
may have submitted doctored evidence in these related cases. (See Minute Orders
dated October 25, 2022 and October 27, 2022 in case number 22STCV05772.)
The Court finds that this motion is not predicated upon any new or
different facts, circumstances, or law, and that Plaintiff has not complied
with the procedural requirements of CCP §1008. Plaintiff’s main argument is that
“[a]t the time of this Court’s September 22, 2022, ruling, Plaintiff did
not have EXHIBIT C; that is, evidence from the Verizon custodian of records
that Biggins misrepresented the facts of September 20 and 23, 2021, ex parte
applications that are his basis for claiming said monies under the subject
supersedeas bond.” (Karpeles Declaration,
¶ 8.) The phone records in question are
from July 22, 2021 through August 21, 2021.
There is no good reason that plaintiff’s counsel could not have obtained
these records – if indeed they are relevant – prior to a September 22, 2022
hearing.
The Court DENIES Plaintiff’s Motion for Reconsideration.
III. Conclusion
The
Court DENIES Plaintiff Caroline Lee’s Motion for Reconsideration.