Judge Peter A. Hernandez, Case Number: BC592047, Date: 2023-09-25 Tentative Ruling

Plaintiff Kathleen Coleman’s Motion for New Trial From Granting Motion to Tax Costs is DENIED.

Plaintiffs Kathleen Coleman (“Coleman”) and John Hutton (“Hutton”) (together, “Plaintiffs”) sustained injuries in a March 15, 2015 motor vehicle collision.

On October 2, 2015, Plaintiffs filed a First Amended Complaint (“FAC”), asserting causes of action against Aneeta Sagar (“Sagar”), Kinder Clinic, Inc. (“Kinder Clinic”) and Does 1-10 for:

On June 14, 2019, Sagar filed a First Amended Cross-Complaint, asserting a cause of action against Coleman and Roes 1-25 for:

On January 29, 2021, an “Order Granting Motion for Summary Adjudication of Issues” was filed; that same day, the court was notified that Sagar had died on January 17, 2021.

On February 24, 2021, Plaintiffs filed an “Amendment to Complaint,” wherein Sahin Kilci, Trustee of the First Amended and Restated Revocable Living Trust of Aneeta Sagar, Dated June 29, 2020 (“Kilci”) was named in lieu of Doe 1.

On October 24, 2022, a “Trial Transfer Order” was filed, assigning the matter to Judge Wesley Hsu for trial purposes only.

On April 10, 2023, the Judgment on Special Verdict was filed. On April 17, 2023, Coleman filed (and mail-served) a “Notice of Entry of Judgment.” On April 28, 2023, Coleman filed a “Memorandum of Costs.”

On July 3, 2023, Coleman filed a “Notice of Appeal.” On September 6, 2023, Kilci filed a “Notice of Cross-Appeal.”

On November 2, 2023, the court heard Kilci’s motion to tax costs, which it took under submission. On November 21, 2023, the court issued its ruling granting the motion to tax costs; notice was given to the parties by the court clerk.

Plaintiff moves the court for a new trial from the granting of Kilci’s motion to tax costs pursuant to Code of Civil Procedure § 657, subdivisions 1, 5 and 7.[1]

Kilci contends that the instant motion is actually a deficient motion for reconsideration pursuant to Code of Civil Procedure § 1008.

The motion is denied, regardless of whether it is characterized as a motion for new trial or a motion for reconsideration. A motion for reconsideration must be supported by an affidavit. (Code Civ. Proc., § 1008). The instant motion is not supported by any affidavit. Further, “[w]hen the application is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court.” (Code Civ. Proc., § 658). “The ‘minutes of the court’ include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken (Gov. Code, § 69844) and may also include depositions and exhibits admitted into evidence and the trial transcript. (§ 660.).” (Lauren H. v. Kannappan (2002) 96 Cal.App.4^th 834, 839, fn. 4.) Again, the instant motion is not supported by any affidavits, nor is it supported by any “minutes of the court.”

[1] Code of Civil Procedure § 657 states, in relevant part, as follows: ““The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial. . .

5. Excessive or inadequate damages. . .

7. Error in law, occurring at the trial and excepted to by the party making the application . . .”