Judge: Monica Bachner, Case: BC643861, Date: 2023-01-06 Tentative Ruling

Case Number: BC643861    Hearing Date: January 6, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Defendants’ motion for reconsideration is denied.

Plaintiff’s motion for sanctions against Defendants and their counsel is denied.

Defendants DOE 101 Paola Caldera (“P. Caldera”), DOE 102 Mian Guo erroneously sued as Mian Gvo (“Guo”), DOE 103 Jia Shen (“Shen”), DOE 104 Yunying Li erroneously sued as Yun Ying Li (“Li”), DOE 105 Min Zhou (“Zhou”), DOE 112 Yavuz Ertas (“Ertas”), DOE 113 Nima Razfar (“Nima” or “N. Razfar”), DOE 114 Ali Razfar (“Ali” or “A. Razfar”), DOE 115 Jessica Caldera (“J. Caldera”), DOE 116 Nadia Saban (“Nadia”), DOE 117 Lebiba Saban erroneously sued as Lily Saban (“Lebiba”), DOE 118 Paul Luigi (“Luigi”), DOE 119 Ganchimeg Oyunchimeg erroneously sued as JanChungOzu (“Oyunchimeg”), DOE 120 Daniel Sacilotto (“Sacilotto”), and DOE 121 Arnaud Larousse erroneously sued as Arnald LaRousse (“Larousse”) (collectively, “Defendants”) move for the court to reconsider its October 24, 2022 order (“MSA Order”) granting in part and denying in part Defendants’ motion for summary judgment/adjudication on the second amended complaint (“SAC”) filed by Plaintiff A.C.A. LLC (“Plaintiff”).  (Notice of Motion, pg. 2.)  Plaintiff requests this court set an order to show cause regarding sanctions against Defendants and their counsel in the amount of $5,880 for bringing an improper motion for reconsideration.  (Opposition, pg. 2; C.C.P. §1008(d).)

Procedural Background

          On December 15, 2016, Plaintiff filed its complaint against Defendant Myron Holmstrom (“Holmstrom”) and DOES 1-200, alleging causes of action for (1) declaratory relief, (2) rescission and restitution, (3) ejectment, (4) trespass, (5) breach of fiduciary duty, (6) false promise, (7) concealment, (8) intentional misrepresentation, (9) intentional interference with contractual relations, (10) breach of contract, (11) professional negligence, and (12) Business and Profession Code §17200, in which the 4th, 5th, 6th, 7th, 8th, and 12th causes of action were asserted against all Defendants, the 1st, 2nd, and 3rd causes of action were asserted against all Defendants except DOES 1-100, the 10th cause of action was asserted only against Holmstrom, and the 9th cause of action was asserted against all Defendants except Holmstrom.  Plaintiff thereafter filed numerous DOE Amendments to the complaint, as well as requests for dismissals of certain causes of action against Holmstrom and certain DOE Defendants.  Plaintiff’s complaint is based on allegations that Rita Seifer (“Seifer”), who owned certain real property buildings which share a border and are located at 540 Glenrock Avenue (“Glenrock Property”) and 543 Landfair Avenue (“Landfair Property”) (collectively “Buildings”) prior to Plaintiff’s purchase of them, assigned her claims against Holmstrom (the Buildings’ property manager) and his alleged co-conspirators (the tenants of the Buildings, moving Defendants) to Plaintiff in an assignment dated December 12, 2016 (“Assignment”), and that Holmstrom allegedly engaged in a scheme whereby he would charge tenants less than market rent, retain half of the rent, and send the remainder to Seifer as landlord. 

          On April 19, 2018, DOES 101-105 filed a cross-complaint against Plaintiff and Cross-Defendant Akhavi (collectively, “Cross-Defendants”).  On April 20, 2018, DOES 101-105 filed a first amended cross-complaint (“FACC”).  On August 9, 2018, J. Caldera, Ertas, Larousse, Luigi, Lebiba, Nadia, Ali, and Nima (collectively, “DOES 112-118, 121”) filed a complaint against Cross-Defendants in a separate action, Case No. BC717036, alleging the same four causes of action as in the FACC.  On February 11, 2020, the Court ordered the instant action and BC717036 consolidated.  On March 27, 2020, DOES 101-105 filed a second amended cross-complaint (“SACC”) alleging the same four causes of action against Cross-Defendants.  On September 14, 2020, the Court granted Oyunchimeg’s ex parte application for leave to file a third amended cross-complaint (“TACC”) to include DOE Defendant names inadvertently omitted from the SACC.  The TACC was thereafter filed on September 15, 2020.

          On September 11, 2020, the Court granted the motion for summary adjudication brought by DOES 101-105 as to Issues Nos. 2-7 and denied the motion as to Issues Nos. 1 and 8.  Accordingly, the Court granted DOES 101-105’s motion for summary adjudication as to the original complaint’s 1st, 3rd, 4th, 9th, 11th, and 12th causes of action, while the 2nd and 5th causes of action remained in the operative pleading.  On December 10, 2020, the Court granted Plaintiff’s motion for leave to file an amended verified complaint in part.  Specifically, the Court granted Plaintiff leave to amend the 1st (declaratory relief), 4th (trespass), 5th (breach of fiduciary duty), 6th (false promise), 11th (professional negligence), and 12th (Section 17200) causes of action and denied leave to amend as to the 2nd (recission and restitution), 3rd (ejectment), 7th (concealment), 8th (intentional misrepresentation), 9th (intentional interference with contractual relations), and 10th (breach of contract) causes of action. 

          On January 7, 2021, Plaintiff filed its first amended complaint (“FAC”) alleging the following causes of action: (1) declaratory relief [as to all Defendants except DOES 1-100]; (2) ejectment [as to all Defendants except DOES 101-105], (3) trespass [as to all Defendants except DOES 101-105], (4) breach of fiduciary duty [as to all Defendants], (5) intentional interference with contractual relations [as to all Defendants except DOES 101-105], (6) declaratory relief (in the alternative) [as to all Defendants], (7) breach of contract (in the alternative) [as to all Defendants], and (8) declaratory relief (in the alternative) [as to all Defendants].  On May 13, 2021, the Court overruled Defendants’ demurrer to the FAC’s 1st and 6th causes of action and sustained the demurrer as to the 7th cause of action (with leave to amend) and 8th cause of action (without leave to amend).  On June 2, 2021, Plaintiff filed the operative SAC alleging the following causes of action: (1) declaratory relief [as to all Defendants except DOES 1-100]; (2) ejectment [as to all Defendants except Caldera, Guo, Shen, Li, and Zhou (collectively, “DOES 101-105”)], (3) trespass [as to all Defendants except DOES 101-105], (4) aiding and abetting breach of fiduciary duty [as to all Defendants], (5) intentional interference with contractual relations [as to all Defendants except DOES 101-105], (6) declaratory relief (in the alternative) [as to all Defendants], and (7) breach of contract (in the alternative) [as to all Defendants]. 

          On October 24, 2022, this Court denied Defendants’ motion for summary judgment and granted Defendants’ motion for summary adjudication as to the 1st, 2nd, 3rd, 4th, and 5th causes of action and as to Issues Nos. 2, 5, and 6, and denied summary adjudication as to the 6th and 7th causes of action and as to Issue No. 7.  This Court did not reach Issue Nos. 1, 3, or 4.

          Defendants filed the instant motion on November 1, 2022.  Plaintiff filed its opposition on December 22, 2022.  Defendants filed their reply on December 29, 2022. 

Motion for Reconsideration

C.C.P. §1008(a) provides, as follows:  “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.”

Defendants move for reconsideration of the Court’s ruling on the following grounds: (1) the Court’s legal conclusion that it could not grant summary adjudication as to some but not all defendants is contrary to the express language of C.C.P. §437c(f)(1) and thus, the Court was required to grant summary adjudication in favor of each Defendant that met his or her burden that remains unrebutted by Plaintiff; (2) the Court’s new determination of fact and conclusions of law in the MSA Order require the court grant summary adjudication of Issue 7 as to the 6th and 7th causes of action for declaratory relief and breach of contract; and (3) the Court’s conclusions of law in the MSA Order that rent control applies, and the 7th cause of action is premature, requires summary adjudication be granted in favor of Defendants as to Issue 7 and the 6th and 7th causes of action for declaratory relief and breach of contract.  (Notice of Motion, pg. 2.)

This court does not have jurisdiction to grant Defendants’ motion because the Declaration of Dennis Riley (“Riley”) fails to state “what new or different facts, circumstances, or law are claimed to be shown” in support of the motion.  (Opposition, pg. 3; see C.C.P. §1008(e); Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [noting that “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,’” and rejecting argument that the trial court’s alleged misinterpretation of law in its initial decision satisfies that requirement].)  Defendants cannot argue that the very motion it seeks to reconsider is the “new or different fact[], circumstance[], or law” under C.C.P. §1008(a) and (b). 

Defendants argue that the Court erred in finding triable issues of material fact that were not among those disputed issues specifically identified by Plaintiff in its Separate Statement Response regarding the 6th and 7th causes of action.  (See Decl. of Riley ¶7.)  However, the Court may consider all the evidence before it on the motion in considering whether to deny summary adjudication.  (See Ghazarian v. Magellan Health, Inc. (2020) 53 Cal.App.5th 171, 183 [“The trial court . . . has discretion to consider facts not referenced in the opposing party’s separate statement.”]; see also Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 184-185 [noting that “the [summary judgment] statute requires the trial court to consider all inferences reasonably deducible from the evidence,” so the fact that the non-moving party “filed no papers in opposition” does not relieve the trial court from its duty to take into account inferences reasonably deducible from the evidence before it to deny summary judgment].)

Further, Defendants did not give Plaintiff 75 days’ notice as required by C.C.P. §437c.  Defendants served their motion for reconsideration via electronic mail on November 1, 2022, for hearing 66 days later, on January 6, 2023. A party’s motion for reconsideration of their summary judgment/adjudication motion is, in effect, a renewed motion for summary judgment/adjudication that entitles the opposing party to all statutory protections under C.C.P. §437c, including 75 days’ notice and a separate statement.  (See Torres v. Design Group Facility Solutions, Inc. (2020) 45 Cal.App.5th 239, 243 [holding trial court abused its discretion where, after initially denying defendant’s motion for summary judgment, the court granted defendant’s motion for reconsideration and therefore granted defendant’s summary judgment without 75 days’ notice to the plaintiff].)

          Accordingly, this Court denies Defendants’ motion for reconsideration.

          Sanctions

Plaintiff’s motion for sanctions is denied.

Dated:  January _____, 2023

Hon. Monica Bachner

Judge of the Superior Court