Judge: Michael Shultz, Case: 20CMCV00027, Date: 2023-01-06 Tentative Ruling
Case Number: 20CMCV00027 Hearing Date: January 6, 2023 Dept: A
20CMCV00027
Charles Olaniyi v. Ajim Baksh, et al.
[TENTATIVE] ORDER
I.
BACKGROUND
The operative Fourth Amended
Complaint filed by Plaintiff on May 24, 2021, alleges that Defendant, Ajim
Baksh dba Baksh Construction (“Baksh”) built a two-unit income property in Los
Angeles in November 2017 subsequently purchased by Plaintiff. Plaintiff alleges
that Baksh issued a Warranty of Completion of Construction to Plaintiff on November
6, 2017, which obligated Baksh to remedy all defects discovered within one year
from that date.
Plaintiff notified Baksh on three
occasions from April through June of 2018, regarding major defects in the
construction which Baksh allegedly refused to repair. Plaintiff alleges that
both his realtor agents, and the owner’s realtors failed to disclose
construction defects on the property. Plaintiff alleges claims for breach of
contract, breach of warranty, fraud, and for violation of Civ. Code, § 1102, et
seq.
At the Order to Show Cause hearing
held on October 10, 2022, Plaintiff affirmed his signature accepting an offer
to compromise made by Defendants, Sarinana Inc. dba Century 21 a Better Service
Realty, Christian Limon, and David Sarinana (“Defendants”). The court ordered
Plaintiff to sign the dismissal and general release. At a status conference
held November 30, 2022, the court held Plaintiff in contempt for failing to
comply with the court’s order of October 10, 2022.
II.
ARGUMENTS
On November 18, 2022, Plaintiff
filed this motion requesting reconsideration of the court’s October 20, 2022,
order requiring him to sign the release and dismissal. Plaintiff argues that at
the time he signed Defendants’ settlement offer in July of 2022, he was
suffering from neurological impacts from a stroke that paralyzed the right side
of his body. He was unable to understand the consequences of accepting the
offer.
On December 1, 2022, Defendants filed
their opposition stating that Plaintiff did not comply with the time
requirements for filing a motion for reconsideration. Plaintiff did not present
new or different facts, circumstances, or law to support the motion. Defendants
ask for imposition of contempt sanctions against Plaintiff totaling $2,790.00
for violating the statute governing motions for reconsideration.
On December 15, 2022, Plaintiff
filed a supplemental declaration contending that his counsel did not explain
the consequences of the Section 998 offer then unexpectedly withdrew from the
case. Olaniyi declaration, 2:14. Plaintiff explains he was disabled, partially
paralyzed, and suffered neurological impairments. Olaniyi declaration, 2:9-13.
On the same date, Defendants filed
evidentiary objections to the foregoing declaration which are discussed below.
III.
LEGAL STANDARDS
A motion for reconsideration must be filed within 10 days
of notice from service of the order at issue. Code
Civ. Proc., § 1008 subd. (a). Additionally, the moving party must show new or different facts,
circumstances, or law that warrant modification, amendment, or revocation of
the prior order. Code Civ. Proc., § 1008 subd. (a). “New facts” does not mean all facts not previously presented.
Moving party is required to show diligence -- a satisfactory reason for not
presenting the facts previously. Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.
IV. DISCUSSION
A.
Defendants’
evidentiary objections to Plaintiff’s unsigned declaration filed 12/15/22
#1.
SUSTAINED. Lacks foundation, lacks qualifications to render expert medical
opinion. Plaintiff has not demonstrated his qualifications to render an opinion
that he was disabled, paralyzed, and suffered neurological impairments
#2.
SUSTAINED. Lacks foundation, hearsay. Plaintiff does not demonstrate the basis
for his opinion of the repair costs necessary to address the defects.
B.
Plaintiff’s
motion is untimely filed, and Plaintiff has not met his burden of proof to
warrant reconsideration of the court’s order.
The clerk gave notice by mail of the October 10 order on the
same day. Therefore, the deadline to file a motion for reconsideration was
October 25, 2022 (10 days increased by five calendar days for service by mail pursuant
to Code
Civ. Proc., § 1013(a)). Plaintiff untimely filed this motion on
November 18, 2022, which is cause for denial of the motion.
Plaintiff’s
contentions regarding his health condition in July 2022, affecting his ability
to understand is not supported by any evidence. Nor does Plaintiff’s December
15, 2022, declaration establish that these health conditions constitute “new
facts”; Plaintiff has not shown any satisfactory reason for why these facts
were not previously presented.
While
the Plaintiff’s declaration regarding the preliminary costs to repair the
premises is inadmissible (see above), it is also irrelevant to the reasons why
Plaintiff seeks reconsideration of the order. This is an additional cause for
denial of the motion.
Defendants
request imposition of sanctions pursuant to Code of Civil Procedure section
1008(d) which states that "[a] violation of this section may be punished
as a contempt and with sanctions as allowed by Section 128.7.” Code Civ. Proc., § 1008. Section 128.7 states in pertinent
part that a party who presents a pleading to the court certifies that the
pleading is not being presented for an improper purpose, such as to cause
unnecessary delay or needless increase in the cost of litigation, that the
legal contentions are warranted by existing law, and that the contentions have
evidentiary support. Code Civ. Proc., § 128.7. subd. (b). Plaintiff’s motion was untimely
made, and Plaintiff has not demonstrated that the reconsideration is warranted
nor did Plaintiff provide any evidentiary support for the motion that could be
considered “new facts.”
Defense
counsel asserts that 12.4 hours were spent relating to this motion, the OSC
hearings, court appearances, and email and letters sent to Plaintiff to
complete settlement. Sanctions are properly imposed for violation of Section
1008 in connection with the motion for reconsideration. Therefore, the court
awards sanctions totaling $450 in fees incurred to prepare Defendant’s six-page
opposition and to appear at the hearing (a total of 2 hours) at the rate of
$225 per hour, which the court finds is reasonable. Declaration of Andrew Leff,
¶ 8.
Based
on the foregoing, Plaintiff’s motion is DENIED. Plaintiff is ordered to pay
sanctions of $450 to Defendants within 10 days.