Judge: Robert S. Draper, Case: 22STCP00957, Date: 2022-10-17 Tentative Ruling

Case Number: 22STCP00957    Hearing Date: October 17, 2022    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Respondents’ Motion for Reconsideration of the Court’s June 10, 2022, Ruling is DENIED. 

FACTUAL BACKGROUND 

This is a Petition to Confirm Arbitration Award (“Petition”). The Petition alleges as follows.

Petitioner Blum Collins, LLP (“Petitioner”) and Respondents Acuity Consulting Services (“Acuity”) and Erik Cooper (“Cooper”) (“Respondents”) entered into a written agreement to arbitrate on January 22, 2019. (Petition at p. 2.) An arbitration hearing was held pursuant to this agreement on September 3, 2021. (Ibid.) In this hearing, neutral arbitrator Peter D. Collison (“Collison”) awarded Petitioner $33,831.25 and dismissed Respondent’s Counterclaim for $786,602.20. (Ibid.)

PROCEDURAL HISTORY 

Petitioner filed the Petition to Confirm Arbitration Award on March 16, 2022.

On May 6, 2022, Petitioner filed the Proof of Service of Petition and Summons.

On May 18, 2022, Cooper filed a Notice of Non-Service of Petition and Summons and a Declaration supporting said notice.

On May 20, 2022, the Court held a hearing on the Petition. The Court indicated that it would consider Respondent’s Notice of Non-Service as a Motion to Quash for Failure to Serve. The Court directed Petitioner to file an Opposition and send the Opposition with the Petition to the address provided by Cooper: 1216 East Parkway, P.O. Box 1413 Gatlinburg, Tennessee 37738. The Court then continued the hearing for both motions to June 10, 2022.

On June 10, 2022, the Court denied Respondents’ Motion to Quash for Failure to Serve and granted Petitioner’s Petition to Confirm Arbitration Award.

On June 28, 2022, Respondents filed the instant Motion for Reconsideration.

On September 20, 2022, Respondents filed a Notice of Unavailability stating that Cooper would be unavailable from September 12, 2022, to September 30, 2022.

On September 28, 2022, Petitioners filed an Opposition to Respondents’ Motion for Reconsideration.

On September 29, 2022, Respondents filed a second Notice of Unavailability stating that Cooper would be unavailable from October 21, 2022, to October 14, 2022.

On September 30, 2022, Respondents filed a Motion to Continue Hearing on Respondents’ Motion for Reconsideration. The hearing for Respondents’ Motion to Continue is set for December 16, 2022.

DISCUSSION 

I.                 MOTION FOR RECONSIDERATION

Respondents move the Court to reconsider its June 10, 2022, order denying their Motion to Quash Service of Summons and granting Petitioner’s Petition to Confirm Arbitration Award.  

Pursuant to Code of Civil Procedure section 1008:

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.

A.   Timeliness

A formal notice of ruling is required to set the time limit running to file a motion for reconsideration. The 10-day time limit runs from service of notice of entry of the order. (Code Civ. Proc., § 1008, subd. (a).) Petitioner filed the Notice of Ruling on June 10, 2022. Respondents state that they received the Notice on June 18, 2022. (Motion at p. 3.) Respondents filed the instant Motion for Reconsideration on June 28, 2022. Accordingly, the instant motion is timely.

B.   Cooper’s Availability

Cooper seeks to continue the instant hearing pursuant to a Notice of Unavailability and a Motion to Continue.

In his Notice of Unavailability, Cooper states that sanctions may be imposed on an opposing counsel who, without good cause, intentionally schedules a hearing or other substantive motion while the absent party is unavailable.

While this is true, it is inapplicable to the instant hearing, which Cooper scheduled himself. As the California Court of Appeal stated in Carl v. Superior Court (2007) 157 Cal.App.4^th 73:

The purported function of this ‘notice’ [of unavailability] was to arrest the power of the superior court to issue any order that would require or impose upon petitioner any legal obligation to act. Simply put, petitioner essentially argues that by filing a ‘notice of unavailability’ he unilaterally called a litigation time-out. This argument fails for many reasons, but the three most obvious are: (1) petitioner cannot on his own enjoin the superior court from issuing orders. . .” (Carl at p. 76.)

Cooper’s Notice of Unavailability precludes opposing counsel from intentionally using Cooper’s unavailability to obtain a tactical advantage in litigation. This is not the case here, as Cooper scheduled the instant hearing himself. By filing a Notice of Unavailability, Cooper did not gain the unilateral right to rearrange the Court’s docket at his discretion.

Additionally, the Court notes that Cooper filed a Motion to Continue the instant hearing. That Motion is not scheduled to be heard until December 2022, two months after the instant hearing. No ex parte application to shorten time as to that hearing or to continue the instant hearing has been filed. Accordingly, the Motion to Continue has no legal effect on the instant hearing.

Finally, while the Court notes that Cooper represents himself pro per, “[i]n propria persona parties are treated like any other party and thus must adhere to the rules of procedure.” (See, e.g., Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-47.) 

C.   Merits

Respondents move the Court to reconsider its June 10 Order based on Cooper’s perception that the presiding Judge was biased against him. Cooper notes that he has since filed a Motion to Recuse as to the presiding judge and has filed a formal complaint against the presiding judge with the California Commission on Judicial Performance.

However, Respondents present no new evidence or authority that would justify reconsideration. Section 1008 represents “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 and could not have been considered by it. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Here, Respondents provide no new evidence or authority for the Court to consider, he only argues that the Court was biased and incorrect in its ruling. This is not an argument proper under section 1008.

Accordingly, Respondents’ Motion for Reconsideration of the Court’s June 10, 2022, Order is DENIED.