Judge: Nathan R. Scott, Case: Rojo v. Rocha, Date: 2023-01-06 Tentative Ruling

Case Management Conference

The CMC is continued to 2/23/23 at 2 pm.

Motion for Reconsideration

Plaintiff Nancy I. Rojo’s motion for reconsideration is denied.  (See Code Civ. Proc. § 1008, subd. (a).)

While a plaintiff may rely on a proposed amended complaint to seek reconsideration of an order sustaining a demurrer (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 943-944), the proposed amended complaint must:

·         contain new allegations that

·         state a cause of action and that

·         could not with reasonable diligence have been presented before.

(See Rains, at p. 943 [“new allegations not previously included by the pleader”]; see also Lucas v. Santa Maria Public Airport Dist. (1995) 39 Ca.App.4th 1017, 1027-1028 [reconsideration of order sustaining demurrer properly denied where plaintiff failed to explain why new allegations were not raised before].)

The Legislature amended Section 1008 in 1992, after Rains and Careau & Co. v. Security Pac. Business Credit, Inc. (1990) 222 Cal.App.3rd 1371, were decided.  (See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 688.) 

The Garcia court “conclude[d] the amendment's reference to ‘new or different’ facts did not make the section’s prerequisites less restrictive.  [Plaintiff’s] argument, if accepted, would effectively eviscerate the threshold showing of diligence which has long required an ‘explanation’ of why the ‘newly discovered’ matter was not presented earlier.  [Plaintiff] would have us say this requirement is met by anything not previously ‘presented’ to the court.  The miserable result would be to defeat the Legislature's stated goal of reducing the number of reconsideration motions and would remove an important incentive for parties to efficiently marshall their evidence.”  (Garcia, supra, 58 Cal.App.4th at p. 689.)

As the Supreme Court emphasized in 2015:  “Courts have construed section 1008 to require a party filing an application for reconsideration or a renewed application to show diligence with a satisfactory explanation for not having presented the new or different information earlier.”  (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839.) 

Here, plaintiff has not shown the proposed 4th amended complaint requires reconsideration of the 8/1/22 order sustaining defendants’ demurrer without leave to amend as to the 1st-4th and 7th-8th causes of action.

1st-4th causes of action, derivative claims.  Plaintiff reasserts these claims as Counts 1 & 2 of the proposed 4AC. 

The proposed 4AC fails to state a cause of action because plaintiff still has not alleged a pre-litigation demand.  (See 8/1/22 order.) 

Plaintiff instead relies on post-litigation demands made after filing the initial complaint.  (See Mounier decl. Ex. 2 [proposed 4AC] ¶¶ 6-12 & Exs. 1-3.)  Plaintiff’s theory that she may make such a demand any time before she amends the complaint (see Reply at pp. 2-3) would swallow the rule requiring a pre-litigation demand.

7th-8th causes of action.  Plaintiff reasserts these claims as Count 5 of the proposed 4AC.  Plaintiff also reasserts some of the underlying allegations within Counts 3 & 4 of the proposed 4AC.  Thus, the allegations are not “new.”  (See Kesa Opp. at pp. 3 [besides the new demand allegations, “[a]ll other statements in the PFAC can be tied directly back to the TAC”], 4 [chart].)

Moreover, plaintiff fails to show why any arguably new allegations in the 4AC could not with reasonable diligence have been presented earlier.

Plaintiff shall give notice.