SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background Facts 

On April 11, 2017, Plaintiff Marvis Davis (“Plaintiff”) filed this action against Defendant Shaun Michael Huttar (“Defendant”) for damages arising from an automobile incident.  

On January 17, 2019, Plaintiff filed his first application for publication, which was rejected on February 13, 2019 due to, among other deficiencies, failure to provide facts and evidence to substantiate the need to serve by publication in order to satisfy the diligence requirement of CCP §§ 415.20, 415.30, and 415.50. (Notice of Rejection, Feb. 13, 2019.)  

On March 23, 2019, Plaintiff filed an amended application for publication, which was granted on July 22, 2019. (Order, July 22, 2019.) 

On November 18, 2019, Plaintiff filed the proof of publication affidavit of the summons upon Defendant in the Los Angeles Daily News for August 4, 2019, August 11, 2019, August 18, 2019 and August 25, 2019. 

After four attempts to obtain default judgment against Defendant and failing to cure the defects noted in each denial, in addition to the age of the case, the Court dismissed Plaintiff’s action on October 13, 2023.  

Now, on October 23, 2023, Plaintiff filed the instant motion for reconsideration of the Court’s October 13, 2023 ruling. 

 

II. Motion for Reconsideration 

A. Timeliness of Motion 

CCP § 1008(a) states:  

 

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. 

CCP § 1008(a), thus, requires a motion for reconsideration to be filed within ten days after notice of the subject ruling. The Court dismissed Plaintiff’s action on October 13, 2023, and Plaintiff filed the motion for reconsideration on October 23, 2023. Therefore, the motion is timely.   

 

B. Analysis 

CCP § 1008(a), thus, requires the Court to reconsider a prior ruling if it finds there are new or different facts, circumstances, or law than those before the Court at the time of the original ruling.  Once the Court determines the existence of new or different facts, circumstances, of law, it can either modify or affirm its prior decision.  (Corns v. Miller (1986) 181 Cal.App.3d 195, 202.) 

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier.  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 150.)  “[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.’”  (Id.)  The burden under § 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”  (New York Times Co. v. Sup.Ct. (2005) 135 Cal.App.4th 206, 212-213.)  There is a strict requirement of diligence, so the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.  (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)   

Default and Default Judgments 

On November 18, 2019, default was entered against Defendant.  

Nearly nine months later, on February 22, 2022, Plaintiff submitted his first request for default judgment, which was denied on March 28, 2022. Aside from failing to dismiss the Doe defendants, Plaintiff’s proof of publication did not specify any amount of damages against Plaintiff to provide proper notice of the judgment amount sought. (Min. Order, March 28, 2022.) The Court also put Plaintiff on notice that Plaintiff’s counsel submitted purported copies of Plaintiff’s medical billing, in which Plaintiff’s counsel did not establish personal knowledge of Plaintiff’s medical bills, and that Plaintiff must authenticate the medical bills. (Ibid.) 

On May 11, 2022, Plaintiff submitted his second request for default judgment, which was denied on July 27, 2022 for the same deficiencies noted on March 28, 2022. Again, Plaintiff failed to dismiss all Doe defendants, and the Court once more informed Plaintiff that the proof of publication did not specify any amount of damages against Defendant. (Min. Order, July 27, 2022.) Plaintiff provided that a copy of the Statement of Damages was served on Defendant by mail on October 29, 2019, but the Court addressed this, informing Plaintiff that service of the Statement of Damages must be in the same manner as the summons and that Plaintiff must submit evidence showing service of the Statement of Damages on Defendant before default was entered by the court clerk. (Ibid.) Plaintiff’s counsel, once more, submitted copies of Plaintiff’s medical billing without establishing personal knowledge of the bills, and the Court informed Plaintiff that Plaintiff must authenticate the medical bills. (Ibid.) 

On September 26, 2022, Plaintiff submitted his third request for default judgment, which was denied on December 16, 2022, noting the same issues addressed in the March 28, 2022 and July 27, 2022 denials of (1) the proof of publication failing to specify an amount, and that Plaintiff must demonstrate serve if the Statement of Damages on Defendant prior to obtaining Defendant’s November 18, 2019 default, and (2) the submission of unauthenticated medical bills. (Min. Order, Dec. 16, 2022.) At this time, the Court also noted the matter was more than five years and six months old, and Plaintiff was placed on notice that the Court was considering dismissing the action pursuant to CCP § 583.360 unless Plaintiff provides admissible evidence demonstrating reasonable diligence. (Ibid.)  

On June 21, 2023, Plaintiff submitted his fourth request for default judgment, which was denied on October 13, 2023. After three prior attempts, Plaintiff finally provided an affidavit of publication indicating service of the Statement of Damages on August 14, 2022, August 21, 2022, August 28, 2022, and September 4, 2022. (Oct. 13, 2023.) However, because the Statement of Damages was served on Defendant after default was entered on November 18, 2019, the Court found the default obtained against Defendant was void. (Ibid.) Further, the Court noted the continuous uncured deficiencies of the unauthenticated medical bills. (Ibid.)  

At the time of dismissal, the matter was six years and six months old, and Plaintiff failed to cure deficiencies noted since the Court’s denial of Plaintiff’s first request for default judgment on March 28, 2022. Furthermore, prior to obtaining the order to serve Defendant by publication, Plaintiff was already aware that his prior attempts to serve Defendant were at a stale address and therefore did not constitute proper service. Plaintiff argues the Court’s previous denials of default judgment did not mention any problems with service of Plaintiff’s statement of damages. However, as addressed above, the prior denials clearly informed Plaintiff of the issue, and the burden is on Plaintiff to correct the deficiencies. The Court repeatedly informed Plaintiff that the statement of damages must be served prior to obtaining default against Defendant, and noted the 2019 affidavit of publication did not provide the amount of damages sought against Defendant to provide notice. Plaintiff cannot argue that the attempted service on Defendant at a known stale address on October 29, 2019 was proper service of the statement of damages, especially when Plaintiff sought service by publication thereafter because of the unsuccessful attempts to properly serve Defendant.  

Plaintiff also argues that he exercised due diligence because he attempted to effectuate valid service of process after filing the complaint, and sought an order for publication. The action was filed on April 11, 2017. Plaintiff did not file an application for an order for publication until January 17, 2019, nearly two years after the filing of the action. Furthermore, the initial application was rejected because Plaintiff failed to provide facts and evidence substantiating the necessity of service by publication, among other issues. (Notice of Rejection, Feb. 13, 2019.) It was not until March 23, 2019 did Plaintiff file an amended application for publication, which the Court granted on July 22, 2019. Plaintiff argues that the frustration of service should also apply to the five-year limitation, and that the time should be tolled from April 11, 2017 until May 7, 2018, when the process server attested he could not locate Defendant. However, as Plaintiff admits, Plaintiff has been unable to locate any caselaw that specifically addressed whether or not frustrated service falls within the impossible, impracticable, and futile statutory exception of CCP § 583.340. Further, the Court does not find Plaintiff’s contention that Plaintiff’s claim should be tolled 839 days availing when Plaintiff made no attempt to serve Defendant until in or around March 2018, nearly a year after the filing of the complaint. (Amended Appl. for Pub., May 23, 2019; Exh. 1.) 

Plaintiff also contends the action was tolled due to Covid-19 and per California Emergency Rule 10(a). California Emergency Rule 10(a) extended the time to bring an action to trial by six months, for a total time of five years and six months. Even with the six-month extension provided by Emergency Rule 10(a), the time to bring the action to trial is futile. At the time the Court dismissed Plaintiff’s action on October 13, 2023, the case was already six years and six months old. Lastly, Plaintiff argues that the Court granting a 180-day continuance on December 15, 2020 so that Plaintiff’s counsel may recover from a head injury “stayed” the proceedings. The Court continuing the Order to Show Cause Re: Dismissal for Failure to Enter Default Judgment initially scheduled for December 15, 2020 to May 5, 2021 (Min. Order, Dec. 15, 2020) to give Plaintiff additional time in no way ceased or may be interpreted as a formal stay on the proceedings.  

 

Based on the foregoing, Plaintiff has presented no new or different facts, circumstances, or law for reconsideration, and therefore the motion is DENIED.