Judge: Peter A. Hernandez, Case: 22PSCV00255, Date: 2023-09-12 Tentative Ruling
Case Number: 22PSCV00255 Hearing Date: September 12, 2023 Dept: K
Defendant KK El Monte Property, LLC’s Motion for Reconsideration Re: Defendant’s Motion to Expunge the Plaintiff City of El Monte’s Notice of Pendency of Action (Lis Pendens) Recorded Against the Defendant’s Property is DENIED.
Background
Defendant
KK El Monte Property, LLC (“KK”) is an owner of the property located at 12346
Valley Boulevard in El Monte, CA 91732 (“subject property”). On June 23, 2020, members of the El Monte
Police Department (“Police”) executed a search warrant at the subject property.
While executing the warrant, the Police observed that the subject property had
been converted into marijuana cultivation facilities, containing numerous
marijuana products in various stages of production. During the search,
the Police encountered Defendants Timothy Earl Nilan (“Nilan”), Ivan Chacon
(“Chacon”), Christian Soto (“Soto”) and Antonio Ramirez (“Ramirez”) in the
office area on the second floor of the subject property. Chacon and Ramirez
stated that they were employees of an illegal dispensary at the subject
property. The Police seized numerous items which had been used to cultivate, manufacture, store and/or
sell marijuana at the subject property in violation of municipal and state law.
On March 16, 2022, Plaintiff filed a complaint, asserting causes of action against KK, Chacon, Soto, Ramirez, Nilan and Does 1-100 for:
1.
Narcotics Abatement (Health & Safety Code §§ 11570
et seq.)
2.
Public Nuisance (Civil Code §§ 3479 et seq.)
3.
Violation of El Monte Municipal Code (EMMC Chapters
5.18 and Ch. 1.19)
4.
Violation of Unfair Competition Law (Business &
Professions Code §§ 17200 et seq.)
5.
Violation of MAUCRSA (Business & Professions Code
§§ 26000 et seq.)
A Case Management Conference is set for November 17, 2023.
Legal Standard
“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.” (Code Civ. Proc., § 1008, subd. (a).)
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, 1500; Mink v. Sup. Ct. (Arnel Develop. Co., Inc.) (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.) “The burden under section 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. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)
Discussion
KK moves the court for an order to reconsider its July 28, 2023 order denying KK’s “Motion to Expunge Plaintiff City of El Monte’s Notice of Pendency of Action (Lis Pendens).”
The motion is denied. KK posits that it has presented a “new unconsidered fact that should have been considered at the time of the July 28, 2023 ruling,” namely, that the purported nuisance was abated when co-defendants moved out of the subject property. (Motion, 5:16-17)
KK concedes that it regained possession of the subject property from co-defendant tenants on or about July 20, 2020, three years prior to the hearing on the expungement motion. (Tao Decl., ¶ 8) The foregoing, then, does not constitute a “new or different fact, circumstance or law” under section 1008. KK fails to provide the court with “some valid reason” for not offering this information earlier.