Judge: Michael Shultz, Case: 24STCV18667, Date: 2025-01-07 Tentative Ruling
Case Number: 24STCV18667 Hearing Date: January 7, 2025 Dept: 40
24STCV18667 Millicent
Powell v. KPL Select Property Management, Inc.
[TENTATIVE] ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION OF THE ORDER DATED OCTOBER 31, 2024, RE: DEFENDANT’S
SPECIAL MOTION TO STRIKE PLAINTIFF’S COMPLAINT
I.
BACKGROUND
The complaint alleges that Defendant improperly commenced
an unlawful detainer action against Plaintiff based ono a three-day notice to
pay rent or quit, which Plaintiff cured by submitting payment as demanded by
the notice. Plaintiff alleged six causes of action arising from Defendant’s
prosecution of the unlawful detainer action.
On October 31, 2024, the Hon. Anne Richardson, determined
that all claims except the claim for quiet enjoyment and for violation of the
Los Angeles Municipal Code arose from Defendant’s filing of the unlawful
detainer action, which is protected speech and subject to being stricken under
Code Civ. Proc., § 425.16. Plaintiff failed to demonstrate the probability of
prevailing on the merits. (M.O.
10/31/24.)
II. ARGUMENTS
Plaintiff
moves for reconsideration of Judge Richardson’s ruling issued and served by the
clerk on October 31, 2024. Defendant objects on grounds the motion was untimely
made and never served on Defendant. If the court determines that the motion was
timely made, Defendant requests a continuance of the hearing to permit
Defendant to file a written opposition.
III. DISCUSSION
A motion for
reconsideration must be made within 10 days of service of the order at issue if
the moving party can show new or different facts, circumstances, or law that
warrant modification, amendment, or revocation of the prior order. (Code
of Civil Procedure section 1008 subd. (a).) The court gave
electronic notice of its ruling on October 31, 2024. Thus, the motion was
required to be filed and served by November 12, 2024, to account for the
statutory 10 days increased by two court days for service by electronic means. (Code
Civ. Proc., §§ 1013; 1010.6(a)(3).) Accordingly,
the motion is timely made.
However, the
motion is procedurally defective as it does not state new or different facts,
circumstances, or law to warrant reconsideration or modification of Judge
Richardson’s order. The prerequisites for bring the motion “specifies the
court's jurisdiction” to hear the motion. (Code Civ. Proc., § 1008 subd. (e.)
Plaintiff
argues that a landlord cannot bring an unlawful detainer action for past due
rent more than one year after the rent became due. (Code
Civ. Proc., § 1161(2).) Plaintiff contends that Defendant knew
or should have known that it could not have prosecuted the unlawful detainer
action for rent allegedly past due from 2022 to 2023. Therefore, Defendant did
not have probable cause to pursue the unlawful detainer action for rent.
“New” facts
does not mean all facts not previously presented. The 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.) Nor has Plaintiff established that
Code Civ. Proc., § 1161(2) is “new” for purposes of reconsideration.
The “probable
cause” element is relevant to the claim for malicious prosecution, which Judge
Richardson struck because Plaintiff did not establish a probability that
Defendant lacked probable cause to prosecute the underlying unlawful detainer
action. (M.O.
10/31/24, p. 6.)
Plaintiff raises a new and different argument, namely
that Defendant “knew or should have known” that Defendant could not file the
unlawful detainer action. (Mot. 5:8-9.) However, Plaintiff has not shown why
this argument was not made earlier. Moreover, “knew or should have known” is
not the correct standard for determining malice in a malicious prosecution
action. Rather, “malice” means hostility or ill will or where Defendant
proceeds “primarily” for an improper purpose." (Downey
Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 495 [“It
has been pointed out that the ‘principal situations in which the civil
proceedings are initiated for an improper purpose are those in which (1) the
person initiating them does not believe that his claim may be held valid; (2)
the proceedings are begun primarily because of hostility or ill will; (3) the
proceedings are initiated solely for the purpose of depriving the person
against whom they are initiated of a beneficial use of his property; [and] (4)
the proceedings are initiated for the purpose of forcing a settlement which has
no relation to the merits of the claim.’"].)
IV. CONCLUSION