Judge: Robert B. Broadbelt, Case: 19STCV42155, Date: 2023-04-13 Tentative Ruling

Case Number: 19STCV42155    Hearing Date: April 13, 2023    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Defendant and cross-complainant Karlen Galstyan  

RESPONDING PARTY:       Defendant and cross-complainant Canon Business Properties, Inc.

Motion for Reconsideration or, Alternatively, to Set Aside Orders

The court considered the moving, opposition, and reply papers filed in connection with this motion.

DISCUSSION

Defendant and cross-complainant Karlen Galstyan (“Galstyan”) moves the court for an order (1) reconsidering the court’s August 30, 2022, August 31, 2022, September 6, 2022, and September 7, 2022 orders granting, in full or in part, various discovery motions filed by defendant and cross-complainant Canon Business Properties, Inc. (“Canon”); (2) setting aside the court’s orders; and (3) permitting Galstyan the opportunity to file oppositions to Canon’s motions.  Alternatively, Galstyan requests that the court set aside the court’s August 30, 2022, August 31, 2022, September 6, 2022, and September 7, 2022 orders pursuant to Code of Civil Procedure section 473, subdivision (b).

First, as a threshold matter, the court notes that Canon contends, in its opposition, that Galstyan is not permitted to participate in this action because his default has been entered on various cross-complaints.  (Garcia v. Politis (2011) 192 Cal.App.4th 1474, 1479 [“Entry of a defendant’s default terminates that defendant’s rights to participate in the litigation”].)  

The court disagrees.  Although Galstyan’s default has been entered as to certain cross-complaints, including those filed by Canon, Galstyan was not in default on every pleading in this consolidated action.  For example, Galstyan did not have default entered against him on the First Amended Complaint filed by plaintiffs Isabel Castellanos, Liliana Ortega, and Antonio Ortega and Valeria Ortega, by and through their guardian ad litem Isabel Castellanos (“Plaintiffs”) at the time that Canon filed its motions.[1]  Further, Galstyan’s default has not been entered as to the cross-complaint filed by City of Los Angeles on March 18, 2020, and Galstyan’s cross-complaint, filed on June 5, 2020, is still pending.  Moreover, the underlying motions filed by Canon do not appear to be limited to discovery sought in connection with any specific complaint or cross-complaint; although they reference the complaint filed by Plaintiffs, the motions do not indicate that they were to be limited to only one pleading.

The court therefore finds that Galstyan has not been divested of his ability to file motions in this action based on the defaults entered against him on certain of the cross-complaints filed in this action.

Second, the court finds that Galstyan has not met his burden of showing the existence of new or different facts that warrant reconsideration of the court’s orders.  (Code Civ. Proc., § 1008, subd. (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.”  (Code Civ. Proc., § 1008, subd. (a).)  The moving party must submit an affidavit stating what new or different facts, circumstances, or law are claimed to be shown.  (Ibid.)  “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].)

Galstyan contends that Canon’s counsel agreed to extend the deadline by which Galstyan had to respond to the subject discovery to February 3, 2022, and Galstyan timely served discovery responses on February 2, 2022.  The court finds that Galstyan has not presented (1) new or different facts within the meaning of section 1008, since Galstyan knew of the alleged extension at the time the court issued its August 30, 2022, August 31, 2022, September 6, 2022, and September 7, 2022 orders, or (2) a “satisfactory” reason why Galstyan did not present this evidence at the hearing.  (People, supra, 186 Cal.App.4th at p. 974.)

Moreover, even if the court were to find that the deadline extension constituted new or different facts, the evidence submitted by Galstyan does not show that the parties’ attorneys entered into such an agreement.  The emails submitted by Galstyan show only that (1) Galstyan’s counsel emailed Canon’s counsel on January 24, 2022, requesting “the second set of discovery that [was] outstanding” to Canon “[p]er [their] discussion” that morning; (2) Canon’s counsel sent “courtesy copies of [the] discovery requests served” on Galstyan on November 18, 2021; (3) Galstyan served responses on February 2, 2022; and (4) Canon’s counsel confirmed receipt of the responses on February 3, 2022.  (Karapetian Decl., Exs. A-B.)  Although the email sent by Galstyan’s counsel references an agreement to provide responses by no later than February 3, 2022, Galstyan has not submitted evidence showing that Canon agreed, in writing, to extend Galstyan’s deadline to respond to discovery.  (Karapetian Decl., Ex. B [February 2, 2022 email from Galstyan’s counsel].)  Thus, this evidence—even if it were “new” within the meaning of section 1008—is insufficient to support Galstyan’s argument that he timely served discovery responses to Canon “[i]n accoradance with the extension granted through February 3, 2022” by Canon.  (Mot., p. 3:24-26.)

Third, the court finds that Galstyan has not shown that there has been a change of law that warrants the court to reconsider its August 30, 2022, August 31, 2022, September 6, 2022, and September 7, 2022 orders on its own motion.  (Code Civ. Proc., § 1008, subd. (c).)

Finally, the court finds that Galstyan is not entitled to relief under the mandatory provision of Code of Civil Procedure section 473, subdivision (b).  Galstyan has requested, in the alternative, that the court set aside the August 30, 2022, August 31, 2022, September 6, 2022, and September 7, 2022 orders pursuant to the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b).  (Mot., p. 11:1-4 [stating that section 473 “provides Galstyan mandatory relief pursuant to attorney error”], 11:10-13 [stating that relief is mandatory under section 473, subdivision (b)].)

Code of Civil Procedure “section 473, subdivision (b) ‘contains two distinct provisions for relief from default’ [citation]—one makes relief discretionary with the court; the other makes it mandatory.”  (Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [internal citation omitted].)  As set forth above, Galstyan has moved for relief under the mandatory provision.  However, this provision applies only to defaults and dismissals:  “the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client….”  (Code Civ. Proc., § 473, subd. (b) [emphasis added]; Martin Potts & Associates, Inc., supra, 244 Cal.App.4th at p. 438 [“the mandatory relief provision is narrower in scope insofar as it is only available for defaults, default judgments, and dismissals”].)

Galstyan has not requested that the court vacate any (1) resulting default entered against him by the clerk, or (2) default judgment or dismissal entered against him.  Thus, the mandatory relief provision of Code of Civil Procedure section 473, subdivision (b) does not authorize the court to set aside its August 30, 2022, August 31, 2022, September 6, 2022, and September 7, 2022 orders.

The court finds that Galstyan has not met his burden to show that (1) the court should reconsider its August 30, 2022, August 31, 2022, September 6, 2022, and September 7, 2022 orders pursuant to Code of Civil Procedure section 1008, or (2) the court should set aside those orders pursuant to Code of Civil Procedure section 473, subdivision (b).  The court therefore denies Galstyan’s motion.

ORDER

The court denies Karlen Galstyan’s motion for reconsideration or, alternatively, to set aside orders.

The court orders Canon Business Properties, Inc. to give notice of this ruling.

IT IS SO ORDERED.

DATED:  April 13, 2023

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court