TENTATIVE RULING

Calendar: 1

Date: 10/28/2022

Case No. 20 GDCV00503 Trial Date:  None Set  

Case Name: Swingle v. Laguna

MOTION FOR RECONSIDERATION

Moving Party: Defendant Geovanny D. Laguna       

Responding Party: Plaintiff Katheryn Swingle (No Opposition)      

FACTUAL AND PROCEDURAL BACKGROUND:

Plaintiff Katheryn Andrea Swingle alleges that plaintiff entered into a written agreement with defendant Geovanny D. Laguna and that defendant breached the agreement by intentionally misrepresenting the nature of certain investments and has refused to repay funds due.  The First Amended Complaint alleges causes of action for breach of contract, common counts, and fraud. 

The file shows that on February 2, 2020, defendant filed an answer to the complaint. 

On November 17, 2021, plaintiff filed a First Amended Complaint.  On December 16, 2021, defendant filed an Amended Answer to Amended Complaint.   

The court then held various hearings in this matter, at which defendant failed to appear.  On June 9, 2022, at the Final Status Conference in the matter, there was no appearance by either side.  The court set an OSC re: Why Sanctions Should Not Be Imposed Per 177.5 CCP Against the Defendant For His Failure to Appear on 04/21/2022, 05/25/2022, and 06/09/2022, and an OSC Why The Defendant’s Answer Should Not Be Stricken for His Failure to appear at the same hearings.  An OSC re Sanctions in connection with plaintiff’s failure to appear that date was also issued.  The OSC hearings were scheduled for June 16, 2022, with the FSC also continued to that date.   The clerk was ordered to give notice and did so.    

On June 16, 2022, the matters were called for hearing.  There were no appearances for plaintiff or defendant.  The court conducted the OSC hearing, noted that defendant had again failed to appear after notice had been given, and ordered defendant’s answer stricken, “for non-compliance pursuant to Los Angeles Superior Court Local Rules 3.10 and 3.25(f)(1) and CCP 575.2(a).”   The remaining OSCs were ordered discharged.  The matter was set for an OSC Re: Entry of Default.  Notice of the order was served by the clerk.  The Amended Answer was stricken.

On August 25, 2022, defendant filed an Unverified Answer to Plaintiff’s Unverified Complaint.   

On September 14, 2022, the court conducted an OSC Re: Entry of Default Judgment/Default Prove-Up Pursuant to CCP section 585.  There was no appearance for defendant.  The court’s minute order states:

“The Court notes that the defendant filed a second Answer on 08/25/2022. The Court strikes the Answer filed on 08/25/2022. No motion for relief from stricken Answer ordered on 06/6/2022 has been filed by the defendant. The plaintiff may proceed with a Request for Default.”

On September 14, 2022, plaintiff filed a Request for Entry of Default, requesting a court judgment in the sum of $92,400.00.  The default was entered as requested the same date. 

ANALYSIS: (Reconsideration cannot be granted based on a CCP §473 claim, on matter presented at an earlier hearing, or on a later-enacted statute that is not retroactive; Gilberd v. AC Transit, 32 CA4th 1494, 1500; see also Weil & Brown, Civil Procedure Before Trial, §9:328 et seq.).

Procedural

Declaration Incomplete 

As noted above, the declaration submitted with the moving papers fails to comply with several requirements applicable to a motion for reconsideration.  

CCP § 1008(a) specifically requires: 

“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.”

Subdivision (d) provides that a violation of this section may be punishable as contempt and warrant sanctions.   Subdivision (e) provides “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.”   

Here, the declaration fails to identify what application was made before, what order or decisions were made which defendant would like to have reconsidered, the judge who made the decision, and what new or different facts, circumstances or law are claimed to be shown. 

The memorandum of points and authorities is also not clear with respect to what is being challenged.   It appears that defendant is seeking to have the court reconsider its order entering default, and its OSC reentry of default, default judgment and prove up, on the ground that defendant had filed his answer on August 25, 2022, and was told not to appear at the September 14, 2022 hearing since his answer had been filed to counter against any OSC re default hearing. 

The motion does not refer to any new law, and the only fact or circumstance mentioned in the declaration are that defendant believed he did not need to appear at the September 14, 2022 hearing. [Laguna Decl., para. 4].  

When bringing a motion for reconsideration based on new facts, the moving party must present “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.”  Garcia v. Hejmadi, (1997) 58 Cal.App.4th 674, 690.  

The motion fails to explain what defendant would have offered at the hearing, which was not already known to the court, as the court expressly noted that defendant had filed a second answer on August 25, 2022 but had failed to file a motion for relief from the order striking the previous answer. The reason for the court entering the default was not that defendant had failed to file an answer, but because defendant’s answer had been stricken for failure to appear at previous hearings, and that order had not been set aside, and defendant had not attempted to have the order set aside.

This motion does not seek relief from the answer being stricken or indicate that defendant intends to do so.  The motion for reconsideration pursuant to CCP section 1008 violates that section by failing to submit the information required in the moving declaration. 

Default

More importantly, the motion appears to acknowledge that defendant’s default has been entered in this matter, as defendant challenges the OSC regarding the default prove up and entry of default judgment.  Again, defendant’s default was requested and entered on September 14, 2022, as defendant’s answers had been ordered stricken.  

Entry of defendant’s default cuts off its right to appear in the action, and it has no right to participate in proceedings until its default is set aside, or judgment is entered, in which case, it may appeal.  Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385-386.  Entry of default is held to oust the court of jurisdiction to consider any motion other than a motion for relief from default.   W.A. Rose Co. v. Municipal Court (1959) 176 Cal.App. 2d 67, 71.  

This motion is not a motion for relief from default, but a motion for reconsideration pursuant to CCP section 1008.  The motion accordingly is not considered by the court because defendant is in default. 

Substantive

CCP § 1008(a) provides, in pertinent part:

“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.”  

This subdivision further provides:

“For a failure to comply with this subdivision any order made on a subsequent application may be revoked or set aside on ex parte motion.” 

Under CCP section 1008, subdivision (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 trial court’s determination of a motion for reconsideration is reviewed for abuse of discretion.  See Wiz Technology, Inc. v. Coopers & Lybrand (2003, 2nd Dist.) 106 Cal.App.4th 1, 16.

As discussed above, even if the court were to consider the motion, there are no new facts submitted of which the court was unaware at the previous hearing which would have prevented default from having been authorized by the court after the court had stricken both of defendant’s answers, and no relief from those orders striking the answers had been sought.   The motion for reconsideration accordingly is denied in any case. 

RULING:

[No Opposition]

Motion for Reconsideration Under CCP section 1008(a) is DENIED.  

Defendant’s Default was entered in this action on September 14, 2022.  The Court accordingly has no jurisdiction to consider any motion other than a motion for relief from default.  The instant motion is a motion for reconsideration and is not brought under any statutory provisions pursuant to which the default could be set aside.   

The motion also fails to comply with the procedural requirements for bringing a motion for reconsideration, and fails to establish any new facts, circumstances, or law which would warrant the court reconsidering its previous order. 

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