Judge: Peter Wilson, Case: 2019-01095448, Date: 2022-10-06 Tentative Ruling
Plaintiff Helen Xiong moves for partial reconsideration of the Court’s June 23, 2022 Order and, by separate motion, for leave to file the “renewed second amended complaint”, i.e. the third amended complaint.
For the reasons set forth below, the Court rules as follows:
1. The motion for partial reconsideration is DENIED.
2. In light of the ruling above, the motion for leave to file the “renewed second amended complaint” is DENIED as MOOT.
Motions for reconsideration are governed by CCP § 1008 which reads, in pertinent part:
“(a) 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.
…
(e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
The requirement of new or different facts, circumstances or law is not procedural, it is jurisdictional. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 [motions for reconsideration are restricted to circumstances where a party offers fact or circumstance not previously considered and a valid reason for not offering it earlier].) Accordingly, “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.)
Here, Plaintiff asserts the motion is based on CCP § 1008, but the memorandum fails to identify any “new or different facts, circumstances or law” that provide the Court jurisdiction. Specifically, the declaration offered in support is deficient. It not only fails to identify any new or different facts, circumstances or law to support jurisdiction, it does not purport to provide any basis at all. (ROA 351; CCP § 1008(a) [“The party making the application shall state by affidavit…what new or different facts, circumstances, or law are claimed to be shown.”].)
While not expressly arguing it, Plaintiff appears to assert that the new or different fact or law is the Court’s June 23, 2022 order sustaining the demurrer. In other words, the argument is that the Court misinterpreted the law. However, that basis does not support reconsideration and has been rejected as “specious.” (Gilberd, 32 Cal.App.4th at 1500 [“What respondent essentially argues is that section 1008 does not apply when the litigant disagrees with the trial court's ruling. Since in almost all instances, the losing party will believe that the trial court's ‘different’ interpretation of the law or facts was erroneous, to interpret [CCP 1008] as the respondent urges would be contrary to the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it.”].)
To the extent Plaintiff is inviting the Court to reconsider its prior ruling to correct an “error,” there is no basis to do so. The Court permitted extensive supplemental briefing and all of Plaintiff’s arguments and authorities presented here were considered prior to the Court’s June 23, 2022 ruling. Nothing Plaintiff has argued or cited disturbs the conclusion there is no support for Plaintiff’s “cure” argument, which has been rejected in other contexts requiring administrative exhaustion. (See, e.g., Miller v. United Airlines, Inc. (1985) 174 Cal.App.3d 878, 890 [The failure to exhaust administrative remedies pursuant to the FEHA requires judgment of dismissal, not abatement of the action as premature.]; see also Drink Tank Ventures LLC v. Real Soda in Real Bottles, Ltd. (2021) 71 Cal.App.5th 528, 541 [collecting cases].)
Plaintiff’s Request for Judicial Notice
Pursuant to Evid. Code §§ 452 and 453, Plaintiff requests judicial notice of the Register of Actions in Adolph v. Uber Technologies, Cal. Supreme Court. No. S274671. (ROA 380.) The Court declines to rule on the request as the document was immaterial to its ruling.
Plaintiff’s Objections to Evidence
Plaintiff objects to the Declarations of (1) Debbie Kurley and (2) Jeffrey S. Jacobson in their entirety based on (a) relevance, (b) improper opinion, and (c) content of a writing. Based on the Court’s ruling on the motion for leave to amend, the objections are MOOT.
Plaintiff to give notice.