Judge Ronald F. Frank, Case Number: 22TRCV00217, Date: 2023-11-02 Tentative Ruling

On March 24, 2022, Plaintiff Financial Services Vehicle Trust, by and through its servicer, BMW Financial Services, NA (“Plaintiff”) filed this action against Defendant, DOE A (“Defendant”) alleging causes of action for: (1) Brach of Contract; (2) Common Count; (3) Claim & Delivery; and (4) Conversion. This action arises out of Plaintiff’s claim that Defendant did not abide by her lease agreement. Plaintiff claims that on or about January 27, 2019, Defendant, for valuable consideration, made, executed and delivered to South Bay BMW (“Dealer”), a written Motor Vehicle Lease Agreement (“Agreement”) for the use of certain personal property described as a 2018 BMW X2 XDR28i motor vehicle, serial no. WBXYJ5C32JEF81336 (“Vehicle”). In the Agreement, Defendant agreed to make 36 monthly base payments of $452.02 each, plus applicable taxes, commencing on January 27, 2019, and monthly thereafter on 27th day of each consecutive month up until the maturity date on January 27, 2022.

Plaintiff claims that on or about July 27, 2020, Defendant defaulted pursuant to the terms of the Agreement by failing to make payment due on said date. Plaintiff further alleges that on or about January 27, 2022, Defendant defaulted under the terms of the Agreement by failing to return possession of the Vehicle to Plaintiff by the expiration date of the Agreement. Due to Defendant’s alleged retention of the Vehicle following default and expiration of the lease terms, Plaintiff filed suit to recover possession of the leased car. Plaintiff also filed an Application for Writ of Possession that was granted by this Court on June 29, 2022. The Court ordered Defendant to return the Vehicle to Plaintiff’s possession on July 7, 2022. Plaintiff asserts that while Defendant retained use and possession of the BMW for forty-two (42) months, she only paid the required lease payment for eighteen (18) of those months. Following recovery of the Vehicle, Plaintiff contends that an inspection showed mileage of 16,401.

On February 16, 2023, this Court signed a Judgment on Complaint after Summary Judgment in favor of Plaintiffs.

Defendant, Doe A now files a Motion for Reconsideration.

On June 13, 2023, Defendant filed a Motion for Reconsideration. On October 20, 2023, Plaintiff filed an opposition. On October 27, 2023, Defendant filed a reply brief.

II. ANALYSIS

Legal Standard

When a court granted or denied a prior application for an order in whole or in part, the original party making the application may make an additional application for the same order when it based upon “new or different facts, circumstances, or law in which case it shall be shown 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.” (Code Civ. Proc. § 1008(b).) If a party fails to comply with CCP § 1008(b), the court may revoke or set aside on ex parte motion any order following the application. (Id.)¿¿If a change in law warrants reconsideration of a prior order entered, the court may make a motion on its own and enter a new order. (Code Civ. Proc. § 1008(c).) An application that fails to comply with CCP § 1008 cannot be considered. (Code Civ. Proc. § 1008(e).)¿

Section 1008 is “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.)¿ Section 1008 is the exclusive means for modifying, amending or revoking an order. That limitation is expressly jurisdictional.”¿ (Id. at p. 1499.)

“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.”¿ (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.)¿ There is a strict requirement or diligence on the moving party; the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.¿ (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)¿ Evidence obtained after a is not ground for reconsideration where there was no showing why evidence could not have been obtained earlier.¿ (Jones v. P.S. Develop. Co., Inc. (2008) 166 Cal.App.4th 707, 725, overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 530 [discussing evidence discovered after a hearing on a motion for summary judgment].)

Discussion

Here, Defendant moves in pro per for a Motion for Reconsideration this Court’s granting of Plaintiff’s Motion for Summary Judgment and Motion for Attorneys’ Fees.

Motion for Summary Judgment

Pursuant to Code of Civil Procedure § 1008(a), “[w]hen 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 applicable to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” Here, Plaintiff notes it provided Doe A with notice of the Court’s minute order granting the Motion for Summary Judgment on January 23, 2023. This motion was not filed until over four months later. As such, Defendant’s motion is untimely.

Doe A’s Motion is Absent of New or Different Facts

Code of Civil Procedure § 1008 also requires a moving party to show some fact or authority that was not previously considered by it. The moving party must also demonstrate that such new information or authority was not previously available to it prior to making this motion. Doe A again, just as she did in her opposition to the Motion for Summary Judgment that Plaintiff should have sold the subject vehicle at an earlier time to reduce her account balance. However, as previously discussed by this Court, Plaintiff maintains it was forced to file an Application for Writ of Possession due to Doe A’s failure to voluntarily return the subject vehicle, and thus Plaintiff was unable to take possession of the vehicle from sale until a judgement was entered. Despite the untimeliness of Doe A’s motion for reconsideration as to the Motion for Summary Judgment, the Court will allow oral argument as to what new facts and considerations Plaintiff has presented as the Court is unable to locate any.

Granting of Attorneys’ Fees

On May 8, 2023, Plaintiff filed its Motion for Attorneys Fees and Costs against Doe A. The motion was GRANTED by this Court on June 2, 2023 – awarding Plaintiff attorneys fees in the amount of $24,990.50 and $1,541.50 in costs. Further, the Court gave notice to Doe A via U.S. mail that same day.

Timeliness as to the Motion for Attorney’s Fees and Costs is not at issue here. What is at issue is whether, pursuant to Code of Civil Procedure § 1008, Doe A has provided new facts or precedents she did not have when filing her opposition to Plaintiff’s Motion for Attorneys’ Fees and costs. The arguments appear to be the same ones present in Doe A’s opposition papers. This Court notes that in that motion, it lowered the requested amount from $32,490.50 to $24,990.50, nearly 23% of the amounts claimed. Again, in the interest of fairness and justice, the Court will allow Plaintiff to point to new facts or law she was not privy to during the filing of her opposition papers. However, the Court’s tentative ruling is to DENY the Motion for Reconsideration as it does not comport with the procedural requirements of section 1008.