Judge: Michael P. Linfield, Case: BC700688, Date: 2022-12-22 Tentative Ruling
Case Number: BC700688 Hearing Date: December 22, 2022 Dept: 34
SUBJECT: Motion for Reconsideration
Moving
Party: Plaintiff
Marcus R. Ellington
Resp.
Party: Defendants Villanueva, Wallace, and
Ruiz
Plaintiff’s
Motion for Reconsideration is DENIED.
PRELIMINARY COMMENT
As the Court has stated in prior Orders in this matter, the Court
recognizes the problems a pro per plaintiff has in navigating the legal system.
These problems are compounded for a pro per plaintiff who is serving a prison
term (and who, according to his own declarations, has mental and physical
health issues).
From the beginning of this case, the Court has taken Plaintiff’s claims
seriously and bent over backwards to allow Plaintiff access to the courts.
After having granted a motion to quash, dismissing the case, and denying
Plaintiff’s motion for reconsideration, the Court ultimately reinstated the
case, in order to allow Plaintiff, an incarcerated citizen, the ability to
pursue his claims. The Court has held 18
hearings in this matter.
Ultimately, the Court sustained
the defendants’ demurrer to Plaintiff’s Third Amended Complaint, in large part
because his claims were barred by various statutes of limitations. The case was
then dismissed.
At the hearing on June 15, 2021, Plaintiff Ellington told the Court that
he had been sentenced to a term of 55 years to life. People incarcerated by the
State of California are guaranteed the right to initiate civil actions, but
such individuals do not have the right to counsel. (Pen. Code, § 2601, subd.
(d).) “A prisoner does not have the right to any particular remedy” and the
Court of Appeals requires a three-part inquiry prior to appointment of counsel
for an indigent prisoner pursuing a civil action. (Wantuch v. Davis
(1995) 32 Cal.App.4th 786, 793; Smith v. Ogbuehi (2019) 38 Cal.App.5th
453, 458.)
The Legislature may want to reconsider the issue of meaningful access to
the civil courts for individuals who are imprisoned and/or have mental health
issues. It might be time for the Legislature to consider providing all civil
litigants a State-funded attorney (just as criminal defendants are provided a
public defender). However, this is not
the current law, and it is not this Court’s function to re-write the laws.
For the reasons discussed below, the Court denies Plaintiff’s motion for reconsideration.
BACKGROUND:
This action arises out of the alleged treatment of
Plaintiff at the Los Angeles Men’s Central Jail by medical providers and
deputies.
On April 2, 2018, Plaintiff Marcus R. Ellington, in
propria persona, commenced this action against Defendants State of California,
City of Los Angeles, J. McDonnell, Wallace, Ruiz, Zolnouni, Wilmore, Kionian,
Banquelos, Negretti, Osegura, and Chin for general negligence, intentional
tort, premises liability, slander, fraud, defamation, legal malpractice, and
state and federal constitutional violations, seeking damages in the amount of
$10.7 million dollars. The complaint appeared to assert defamation and slander
claims against various defendants for listing him as a child molester on their
website. (See Complaint.)
On November 14, 2019, Plaintiff filed his First
Amended Complaint against Defendants Men’s Central Jail, A. Villanueva, J.
Wallace, N. Ruiz, P. Zolnouni, E. Wilmore, K. Konian, Megan’s Law, American Sex
Offender.com, and homefacts.com.
On July 30, 2020, the Court granted Defendants’
motion to quash service of summons on the grounds that Plaintiff had not
demonstrated that service was proper or complied with applicable statutory
requirements.
On September 30, 2020, the Court denied Plaintiff’s
motion for reconsideration regarding the Court’s ruling on the motion to quash.
On February 19, 2021, the Court dismissed this matter
without prejudice due to Plaintiff’s failure to appear or communicate with the
Court.
On March 29, 2021, the Court granted Plaintiff’s
motion to vacate the dismissal as Plaintiff filed notice that Lancaster State
Prison, where Plaintiff was incarcerated at the time, did not allow him to
access court-call service.
On June 15, 2021, the Court denied Plaintiff’s motion
for appointment of counsel on the grounds that it was instead reconsidering its
July 30, 2020 Order quashing service of summons on Defendants in light of Smith
v. Ogbuehi (2019) 38 Cal.App.5th 453, Apollo v. Gyaami (2008) 167
Cal.App.4th 1468, and Wantuch v. Davis (1995) 32 Cal.App.4th 786.
On September 14, 2021, the Court vacated its July 30,
2020 Order and granted Plaintiff leave to amend his pleadings by filing a
second amended complaint.
On October 21, 2021, Plaintiff filed his Second
Amended Complaint against Defendants Men’s Central Jail, A. Villanueva, J.
Wallace, N. Ruiz, P. Zolnouni, E. Wilmore, K. Konian, Megan’s Law, American Sex
Offender.com, homefacts.com, Banquelos, and Pangalini.
On February 16, 2022, the Court sustained without
leave to amend Defendants’ Sheriff Alex Villanueva, Dr. J. Wallace, and N.
Ruiz’s Demurrer as to the first, second, third, sixth, eighth, and ninth causes
of action in the Second Amended Complaint.
On March 1, 2022, Plaintiff filed his Third Amended
Complaint against Defendants Men’s Central Jail, A. Villanueva, J. Wallace, N.
Ruiz, P. Zolnouni, E. Wilmore, K. Konian, Megan’s Law, American Sex
Offender.com, homefacts.com, Banquelos, Pangalini, Chin, and Thomas to allege
the following causes of action:
1. General Negligence
2. Intentional Tort
3. Professional Malpractice
4. General Negligence
5. Per Se Liability
6. U.S. Constitutional Violation (42 U.S.C. § 1983)
The Third Amended Complaint alleged various violations
against the Sheriff Defendants stemming from Plaintiff’s treatment in Men’s
Central Jail in 2017, and causes of action against the Website Defendants for
labeling him a child molester. (See
Third Amended Complaint.) However, the
Website Defendants have never been served in this action.
On May 20, 2022, the Court: (1) sustained without
leave to amend Defendant Sheriff Alex Villanueva’s Demurrer as to fourth cause
of action in Plaintiff’s Third Amended Complaint; (2) denied Plaintiff’s Motion
to Reconsider the Court’s February 16, 2022 Order; and (3) denied for lack of
service Plaintiff’s Request to Reinstate/Reconsider the Motion for Appointment
of Counsel.
On September 12, 2022, the Court denied Plaintiff’s
Motion for Appointment of Counsel. In part, the Court denied that Motion
without prejudice as this Court was not the proper forum for certain requests
for relief.
On September 16, 2022, the Court dismissed this
matter pursuant to its May 20, 2022 Order sustaining the Demurrer.
On October 24, 2022, Plaintiff filed his Motion for
Reconsideration of the Court’s Dismissal of Certain Defendants on September 12,
2022 Without Consideration for the Plaintiff’s Objection and Presence at the
Hearing (“Motion”).
On December 8, 2022, Defendants Villanueva, Wallace,
and Ruiz filed their Opposition to Plaintiff’s Motion for Reconsideration.
Plaintiff has not filed a reply.
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 for reconsideration by arguing: (1) that
Plaintiff has set forth evidence and facts that support Plaintiff’s being
hampered by prison officials; (2) that Plaintiff has set forth evidence and
facts that support Plaintiff having a severe mental illness and physical
disabilities; (3) that the Court committed error by not tolling the relevant
period for as long as Plaintiff was incapacitated; (4) that the Court refused
to permit Plaintiff to attend the Hearing on September 12, 2022; and (5) that
the Court is allowing prison officials to hamper Plaintiff by serving the
Court’s Tentative Rulings to the prison. (Motion, pp. 2–3.) Plaintiff then
argues that counsel should be appointed for Plaintiff. (Id. at p. 4.)
Defendant argues that the Court should deny the Motion because: (1) the
Motion was filed after the Court entered Judgment; (2) the Motion was not filed
within 10 days of notice of entry of the order challenged; and (3) the Motion
is not based on new facts or new law. (Opposition, p. 2:13–15.)
Defendants are correct.
As a procedural matter, the Motion
is untimely. A motion for reconsideration must be filed within 10 days of
notice of the Court’s order. (Code
of Civ. Proc., § 1008, subd. (a).)
Defendants provided notice of this Court dismissal of the action on
September 13, 2022 (See Motion, Exh. A.); Plaintiff’s Motion for
Reconsideration was not filed until almost six weeks later, on October 24,
2022. Further, the deadline to appeal the judgment of dismissal was November
15, 2022; as far as the Court is aware, not appeal has been filed. This Court simply has no jurisdiction to consider
Plaintiff’s Motion for Reconsideration.
As a substantive matter, Plaintiff has not alleged new facts or new law
that the Court did not previously consider. The Court previously considered
each of the exhibits Plaintiff attaches to his Motion for Reconsideration.
In addition, the Court addresses each of Plaintiff’s arguments so that
Plaintiff can understand why the Court is making this decision.
First, the Court is making no determination as to whether Plaintiff is or
is not being hampered by prison officials. Although this Motion is signed under
penalty of perjury (as were many of Plaintiff’s previous motions), it is not
clear what such a verification means. The
majority of Plaintiff’s motion contains legal argument; other statements in the
motion would be barred as evidence because they lack foundation or are
hearsay. However, even if Plaintiff were
actually being hampered by prison officials, that would not alone be sufficient
for the Court to appoint counsel.
Second, Plaintiff alleges that he has schizophrenia and PTSD. (Motion, p. 2, ¶2.)
As indicated above, although this statement is “verified” under penalty
of perjury, there is no doctor’s note from a qualified physician attesting to
Plaintiff’s mental or physical condition.
While the Court does not challenge Plaintiff’s assertions that he has a
mental illness and physical disabilities, these allegations are not, in and of
themselves, sufficient for the Court to appoint counsel. Rather, the Court was required to apply the three-part
test outlined in Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, 465. After
considering the three prongs, the Court twice found that it was not appropriate
to appoint counsel. (See Court’s Minute Orderes of June 15, 2021 and August 22,
2022.)
Third, tolling is not an issue that has any effect on the Court’s
decision of whether to appoint Plaintiff counsel.
Fourth, it is factually inaccurate to state that the Court refused to
permit Plaintiff to attend the Hearing on September 12, 2022. The Court has
always permitted Plaintiff to attend the Hearings in this matter, including the
Hearing on September 12, 2022. However, the Court cannot force parties to
attend hearings, nor can it follow up with every plaintiff to ensure their
presence. On numerous occasions during the past five years, the Court has
repeatedly continued hearings and vacated rulings in this matter when Plaintiff
has not appeared; in significant part, this was done because the Court has
consistently recognized the difficulties of a pro per Plaintiff who is
incarcerated and alleges both mental and physical illness. However, the Court is
not required to ensure that a party appears at a law and motion hearing before
issuing its decision; in fact, almost every day of the week, this Court will
issue decisions on contested law and motion matters where one party chooses not
to appear – or otherwise fails to appear – at the hearing.
Finally, Plaintiff’s argument regarding Tentative Rulings has nothing to
do with the issue at hand. All of the
Court’s proceedings — including Tentative Rulings — are publicly available. Any
person who wishes to see the Court’s Tentative Rulings can do so as soon as
they are published on www.lacourt.org. Thus, it is unclear to the Court that
there is any harm to Plaintiff by sending him publicly-available material.
Moreover, the only way to provide Plaintiff with notice of the Court’s ruling is
by mail sent to the Prison. In fact, the Court has gone out to its way to
ensure that Plaintiff receives notice of every ruling made by the Court. If the Court were not to send its Rulings to
the prison, then Plaintiff would not know what is happening in his case; such a course of action would deny Plaintiff
due process and would give Defendants an unfair advantage over Plaintiff.
Plaintiff’s Motion to Reconsider is
DENIED.
III.
Conclusion
Plaintiff’s Motion for
Reconsideration is DENIED.