Judge: Richard S. Whitney, Case: 37-2021-00030875-CU-BC-CTL, Date: 2024-03-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - March 14, 2024

03/15/2024  10:30:00 AM  C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited  Breach of Contract/Warranty Motion Hearing (Civil) 37-2021-00030875-CU-BC-CTL ICON IDENTITY SOLUTIONS INC VS MISSION VALLEY SHOPPINGTOWN LLC CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: ICON IDENTITY SOLUTION, INC.'S MOTION FOR RECONSIDERATION OF COURTS ORDER GRANTING SANTA MISSION, INC.'S MOTION TO EXPUNGE MECHANIC'S LIEN is DENIED.

Plaintiff Icon Identity Services, Inc. ('Plaintiff') asks this Court to reconsider its ruling on Defendant, Cross-Complainant and Cross-Defendant Santa Mission, Inc.'s ('Defendant') motion to expunge the mechanic's lien.

A party may move the Court to reconsider a prior ruling 'based upon new or different facts, circumstances, or law....' (Code Civ. Proc., § 1008.) 'The moving party also must provide a satisfactory explanation for the failure to make the showing at or before the time the challenged order was issued.' (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 208.) '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.' (Id. at 212–213.) Defendant asserts the motion is untimely. The motion must be made 'within 10 days after service upon the party of written notice of entry of the order....' (Code Civ. Proc., § 1008(a).) The 10–day period began from [Defendant's] service of the notice of entry and not from the clerk's service of the dismissal order. Section 1019.5, subdivision (a), provides: 'When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order shall be given by the prevailing party to all other parties or their attorneys, in the manner provided in this chapter, unless notice is waived by all parties in open court and is entered in the minutes.' (§ 1019.5, subd. (a).) The purpose of such notice is to start the time running on a party's ability to seek reconsideration.

(Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 203 [58 Cal.Rptr.3d 466, 481] disapproved of by Shalant v. Girardi (2011) 51 Cal.4th 1164 on other grounds.) The Court signed the amended order on October 3, 2023. Defendant purportedly served notice of an order on September 22, 2023, but such service could not have been notice of the signed order dated October 3, 2023. (ROA # 195.) Plaintiff filed this motion on October 13, 2023, within ten (10) days of the Court signing the order. The Court finds Defendant has failed to demonstrate this motion is untimely.

Defendant next argues the motion does not demonstrate Plaintiff acted with reasonable diligence. The Calendar No.: Event ID:  TENTATIVE RULINGS

3036183  52 CASE NUMBER: CASE TITLE:  ICON IDENTITY SOLUTIONS INC VS MISSION VALLEY SHOPPINGTOWN  37-2021-00030875-CU-BC-CTL Court agrees Plaintiff has demonstrated the existence of 'new or different facts, [or] circumstances' that were not presented at the time of the motion to expunge. (Code Civ. Proc., § 1008(a).) However, the Court agrees with Defendant that Plaintiff has not demonstrated that it could not, with reasonable diligence, have presented the evidence at the time of the motion to expunge. At best, Plaintiff asserts it did not anticipate that the evidence as to licensure was necessary because it believed the motion was moot as a result of the release bond. Plaintiff essentially argues that it assumed it would be successful on that particular argument, so it neglected to properly support its other arguments as to licensure.

Plaintiff now seeks to have the Court consider evidence as to licensure which Plaintiff did not present at the time of the motion even though Plaintiff could have presented such evidence at the time of the motion. The motion is denied.

'A motion for sanctions under this section shall be made separately from other motions....' (Code Civ.

Proc., § 128.7(c)(1).) Further, CCP section 128.7(c) also provides the '[n]otice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.' (Code Civ. Proc., § 128.7(c)(1).) The Court will not consider the sanctions request as it is procedurally improper.

Defendant must obtain a separate hearing date for such a motion.

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3036183  52