Judge: Robert B. Broadbelt, Case: 19STCV32910, Date: 2023-04-12 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 19STCV32910    Hearing Date: April 12, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Plaintiff Los Angeles Defiant Ones MC, LLC          

RESPONDING PARTIES:     Defendants Gerald D. Daily and Andrew Thompson

Motion for Reconsideration

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.

DISCUSSION

Plaintiff Los Angeles Defiant Ones MC, LLC (“Plaintiff”) moves the court for an order reconsidering the court’s August 30, 2022 order granting the motion to expunge notice of pendency of action filed by defendants Gerald D. Daily and Andrew Thompson (“Defendants”) and ordering the Notice of Pendency of Action recorded against the property commonly known as 8201 South Central Avenue, Los Angeles, California, expunged.

“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 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.”  (Code Civ. Proc., § 1008, subd. (a).)  The moving party must submit an affidavit that states “what new or different facts, circumstances, or law are claimed to be shown.”  (Ibid.)  Under this provision, “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.’”  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

The court finds that Plaintiff has not met its burden of presenting new facts, circumstances, or law that warrant reconsideration of the court’s August 30, 2022 order, and therefore denies Plaintiff’s motion.  (Code Civ. Proc., § 1008, subd. (a).)

First, as a threshold matter, the court notes that Defendants contend that Plaintiff’s motion is untimely. 

A motion for reconsideration must be made “within 10 days after service upon the party of written notice of entry of the order….”  (Code Civ. Proc., § 1008, subd. (a).)  The court issued the subject order on August 30, 2022.  Defendants filed the “Notice of Ruling Hearing Held August 30, 2022 at 10:00 a.m.” on September 22, 2022, and (1) attached a copy of the court’s August 30, 2022 order granting their motion to expunge, and (2) attached a Proof of Service stating that the notice was served on August 22, 2022.  The Proof of Service of the notice of ruling includes a typographical error, as it states that the notice was served on August 22, 2022 (i.e., eight days before the court’s order). 

However, Plaintiff’s counsel states in his supporting declaration that he received notice of the ruling on September 22, 2022.  (Horaites Decl., ¶ 3.)  Although counsel does not state the method of service in his declaration, Plaintiff’s motion indicates that Defendants’ counsel served Plaintiff by email.  (Mot., p. 3:20-21.)  Pursuant to Code of Civil Procedure section 1010.6, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days” except as to certain motions.  (Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)  Because Defendants served Plaintiff with the notice of the court’s order by email on September 22, 2022, Plaintiff was permitted to file this motion by no later than October 5, 2022 (i.e., 10 days pursuant to Section 1008 (October 3, 2020) + 2-court-day extension pursuant to Section 1010.6).  Thus, Plaintiff’s motion—filed on October 3, 2022—is timely.

Second, the court finds that Plaintiff has not presented new facts, circumstances, or law that would warrant reconsideration of the court’s order. 

Plaintiff submits the declaration of its counsel, who states that (1) Defendants’ counsel agreed to take the underlying motion to expunge off calendar by written stipulation if Plaintiff’s counsel withdrew the Notice of Pendency of Action on or before September 15, 2022, and (2) Plaintiff’s counsel withdrew the Notice of Pendency of Action on September 14, 2022.  (Horaites Decl., ¶¶ 3, 7; Horaites Decl., Exs. A-B [proposed stipulations], Ex. D [September 14, 2022 Withdrawal of Lis Pendens].)  Plaintiff appears to argue that the parties’ proposed stipulation and agreement to withdraw and take the motion to expunge off calendar warrants reconsideration of the court’s August 30, 2022 orders.

The court notes that Plaintiff presents evidence showing that counsel for Plaintiff and Defendants attempted to reach a stipulation that would result in Plaintiff’s withdrawal of the Notice of Pendency of Action and Defendants’ withdrawal of their motion to expunge.  (Horaites Decl., ¶¶ 2-4.)  However, the stipulations submitted by Plaintiff were signed only by Plaintiff’s counsel and were not signed by Defendants’ counsel.  (Horaites Decl., Exs. A-B.)  Thus, Plaintiff has not presented evidence showing that the parties entered into a stipulation requiring Defendants to take their motion off calendar.  In opposition, Defendants have presented evidence confirming that their counsel did not agree to take the motion off calendar because Plaintiff did not include all requested language in the proposed stipulation.  (Pettway Decl., ¶¶ 12-14.)

Plaintiff also submits various email communications in an attempt to show that Defendants agreed to withdraw their motion.  However, the only message reflecting such an agreement is an email sent by Plaintiff’s counsel.  (Horaites Decl., Ex. C [August 29, 2022 email from Horaites].)  There is no evidence showing that Defendants’ counsel agreed, in writing, to take the motion to expunge off calendar.  Plaintiff’s counsel’s call history showing that certain calls were made to Defendants’ counsel similarly does not show that Defendants agreed to withdraw their motion.  (Horaites Decl., Ex. D.)

Further, Plaintiff submits evidence showing that it recorded a “Withdrawal of Lis Pendens” with the Los Angeles County Recorder’s Office on September 14, 2022.  (Horaites Decl., Ex. D.)  Plaintiff appears to submit this evidence to show that Plaintiff had fully performed its obligation under the stipulation.  (Horaites Decl., ¶ 7 [“On September 14, 2022     . . . [Plaintiff’s counsel] was in full compliance with the above stated stipulation to take the expunge motion off calendar” by recording the notice of withdrawal], ¶ 10 [Defendants’ counsel “decided to take advantage of [Plaintiff’s counsel’s] trust and belief that [Defendants’ counsel] would abide by her stipulated agreement that [Plaintiff’s counsel] had already fully performed and withdraw her motion to expunge”].)  However, as set forth above, the court has not been presented with evidence that all parties executed the proposed stipulation with which Plaintiff contends it complied. 

Even if Plaintiff’s evidence showed that Defendants agreed to withdraw their motion, Plaintiff knew of these facts before the date of the August 30, 2022 hearing.  (Horaites Decl., Exs. A-B [proposed stipulations dated August 29, 2022], Ex. C [August 29, 2022 emails between counsel].)  “Facts of which a party seeking reconsideration was aware at the time of the original ruling are not ‘new or different facts,’ as would support a trial court’s grant of reconsideration.  [Citation.]  To merit reconsideration, a party must also provide a satisfactory reason why it was unable to present its ‘new’ evidence at the original hearing.”  (People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 974 [internal citation omitted].)  Here, Plaintiff knew of the alleged agreement between the parties before the hearing and therefore has not presented “new” facts in relation to this agreement as required by Section 1008.  (Ibid.; Code Civ. Proc., § 1008, subd. (a).)

Moreover, although Plaintiff’s counsel stated that he could not appear at the August 30, 2022 hearing, Plaintiff has not provided a satisfactory reason as to why it was unable to file an opposition to have its evidence considered, an ex parte application to continue the hearing so that the parties could execute the stipulation and submit evidence thereof and of the withdrawal of the Notice of Pendency of Action, or to seek other relief in order to present the evidence submitted in connection with this motion.  (Safety National Casualty Corp., supra, 186 Cal.App.4th at p. 974; Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255 [“the moving party must provide a ‘ “ ‘satisfactory explanation for the failure to produce that evidence at an earlier time’ ” ’].)

Finally, the court notes that Plaintiff’s motion includes a “list of true facts [that] controvert the statement made in Defendants’ Motion to Expunge[.]”  (Mot., p. 6:7-8:4.)  These facts were not stated in an affidavit and therefore cannot serve as the basis of this motion.  (Code Civ. Proc., § 1008, subd. (a) [“The party making the application shall state by affidavit . . . what new or different facts, circumstances, or law are claimed to be shown”] [emphasis added].)

ORDER

The court denies plaintiff Los Angeles Defiant Ones MC, LLC’s motion for reconsideration.

The court orders defendants Gerald D. Daily and Andrew Thompson to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 12, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court