Judge: Serena R. Murillo, Case: 21STCV27613, Date: 2023-10-25 Tentative Ruling
Case Number: 21STCV27613 Hearing Date: October 25, 2023 Dept: 31
TENTATIVE
Plaintiff’s motion for
reconsideration is DENIED. The Court reconsiders the August 11, 2023 ruling as to
Defendant’s demurrer on its own motion and OVERRULES the second cause of action
for “Violation of the United States Constitution.”
Legal
Standard
Code of Civil
Procedure Section 1008(a) provides that “[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 . . . [may] 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.” (Code Civ. Proc., § 1008(a).) A trial court has
discretion with respect to granting a motion for reconsideration. (New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206,
212.)
¿¿¿
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, 1499.)¿Motions for
reconsideration are restricted to circumstances where a party offers the Court
some fact or circumstance not previously considered, and some valid reason for
not offering it earlier.¿ (Id.)¿¿¿¿
¿¿
Moreover,
there is a strict requirement of diligence, which means 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.)¿ The burden under Cal. Code Civ. Proc. § 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 trial.¿ (New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)¿¿
¿
New
circumstances can be shown by evidence that the court failed to consider a
timely-filed memorandum of points and authorities in its prior ruling.¿ (Johnston
v. Corrigan (2005) 127 Cal.App.4th 553, 556.)¿¿¿¿
Discussion
I.
Plaintiff’s Motion for Reconsideration
Plaintiff moves for reconsideration of the Court’s August 11, 2023
ruling sustaining Defendant’s demurrer without leave to amend.
Plaintiff has not shown new or different facts,
circumstances or law. “[F]acts
of which the party seeking reconsideration was aware at the time of the
original ruling are not ‘new or different.’” (In re Marriage of Herr
(2009) 174 Cal.App.4th 1463, 1468 [citing Garcia v. Hejmadi (1997) 58
Cal.App.4th 674, 690].) Disagreement with a ruling is not a new
fact that will support the granting of a motion for reconsideration. (Gilberd
v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)
Therefore,
Plaintiff’s motion is denied.
II. The Court’s Own Motion
However, the
Court, on its own motion, reconsiders the August 11, 2023 ruling on the
demurrer as to Plaintiff’s second cause of action for “Violation of
the United States Constitution” only,
to correct its own error.
The court retains the inherent
authority to amend its own orders on its own motion. (Le Francois v. Goel
(2005) 35 Cal. 4th 1094, 1107.)
The court’s
inherent authority to reconsider and correct its own orders is constitutionally
derived. (Walker v. Superior Court¿(1991) 53 Cal.3d 257, 267.) A court “must exercise due consideration
before modifying, amending, or revoking its prior order.” (Case v. Lazben
Financial Co. (2002) 99 Cal.App.4th 172, 189.) A court’s inherent power to reconsider
interim rulings may be exercised “even in the absence of newly discovered
evidence” and “[e]ven without a change of law.” (Ziller Electronics Lab GmbH
v. Superior Court (1988) 206 Cal.App.3d 1222, 1231, Pinela v. Neiman
Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237.) Thus, the inherent
power is distinct from a court’s power under CCP § 1008 following a motion for
reconsideration. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368,
389: “Consequently, we hold that the separation of powers doctrine precludes an
interpretation of section 1008 that would deprive a trial court of jurisdiction
to reconsider its own interim orders sua sponte.”)
The Government
Claims Act does not apply to claims based on federal law (see Williams v. Horvath (1976) 16 Cal.3d
834, 837-42; Edmon & Karnow, Cal. Practice Guide: Civil Procedure Before
Trial (The Rutter Group, June 2017 Update) ¶ 1:659). As such, in the Court’s
previous demurrer ruling of August 11, 2023, the analysis pertaining to the
Government Claims Act’s claim presentation requirements should not have applied
to the second cause of action for “Violation of the United States Constitution.”
Instead, the following analysis should have applied to the second cause of
action:
Demurrer to Second Cause of Action for “Violation
of the United States Constitution”
Defendant
demurs to the second cause of action on the basis that Heck v.
Humphrey (1994) 512 U.S. 477, 486- 487 bars claims challenging the
constitutionality of an arrest, prosecution, and eventual conviction because
Plaintiff has not stated facts showing that his conviction or imprisonment has
“been reversed on direct appeal, expunged by executive order, declared invalid
by a state tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” (Heck, supra, 94 Cal.App.4th
at 486-487.)
The question
considered by the United States Supreme Court on appeal was whether a state
prisoner, such as Heck, may challenge the constitutionality of his conviction
in a suit for damages under 42 U.S.C. § 1983 (“Section 1983”). (Id.,
at p. 478.) As a precursor to the Court’s Opinion, the Court specified
that Section 1983 is a federal law which provides individuals with the
authority to challenge the lawfulness of a conviction or imprisonment. (Id.,
at p. 480 [stating action under Section 1983 provides “a federal forum for
claims of unconstitutional treatment at the hands of state officials”].)
The Court noted that, as Section 1983 may be employed to collect damages for an
unlawful conviction or imprisonment, Section 1983 “‘creates a species of tort liability’”,
and in order to determine the prerequisite for such an action for damages under
Section 1983, the Court is guided by the principles of the common law of
torts. (Id., at p. 483.) The Court found, “[t]he common-law
cause of action for malicious prosecution provides the closest analogy to
claims of the type considered here” under Section 1983. (Id., at
p. 484.) Th Court, thereafter, noted
One element that must be
alleged and proved in a malicious prosecution action is termination of the
prior criminal proceeding in favor of the accused. [Citation.] This
requirement ‘avoids parallel litigation over the issues of probable cause and
guilt . . . and it precludes the possibility of the claimant [sic] succeeding
in the tort action after having been convicted in the underlying criminal
prosecution, in contravention of a strong judicial policy against the creation
of two conflicting resolutions arising out of the same or identical
transaction.’ [Citation.] Furthermore, ‘to permit a convicted
criminal defendant to proceed with a malicious prosecution claim would permit a
collateral attack on the conviction through the vehicle of a civil suit.’
[Citation.] This Court has long expressed similar concerns for finality
and consistency and has generally declined to expand opportunities for
collateral attack. [Citations.] We think the hoary principle that
civil tort actions are not appropriate vehicles for challenging the validity of
outstanding criminal judgments applies to § 1983 damages actions that necessarily
require the plaintiff to prove the unlawfulness of his conviction or
confinement, just as it has always applied to actions for malicious
prosecution.
(Id.,
at p. 484-486.) Thus, the Court concluded that, “in order to recover
damages for allegedly unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a conviction or sentence
invalid, a § 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a
state tribunal authorized to make such determination, or called into question
by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. §
2254. A claim for damages bearing that relationship to a conviction or
sentence that has not been so invalidated is not cognizable under § 1983.” (Id.,
at p. 486-487.)
Additionally,
in Susag, the California Court of Appeal, Fourth District approved and
applied the United States Supreme Court’s ruling in Heck, holding the
same requirements are applicable to state law tort causes of action. (Susag,
supra, 94 Cal.App.4th 1401, 1412-1413.)
Plaintiff’s second cause of action
is not wholly based upon the theory of Plaintiff’s wrongful conviction. Rather,
Plaintiff’s second cause of action is predicated on a different theory of
liability, namely that LAPD committed theft of Plaintiff’s personal belongings
when it failed to return the items within Plaintiff’s vehicle and the items
retrieved from the alleged robbery. (FAC, ¶¶ 57-58, 66-67.) Accordingly, Heck
and Susag are inapplicable. While Plaintiff’s second cause of action is based,
partly, upon a theory of wrongful conviction, the Court is unable to sustain
Demurrer pursuant to Heck and Susag, as Plaintiff’s second cause of action
asserts a second theory of liability based upon the aforementioned theft
committed by LAPD, which Defendant has failed to sufficiently challenge. (Fremont
Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A
demurrer must dispose of an entire cause of action to be sustained.”].)
Therefore, the demurrer
to the second cause of action is OVERRULED. In all other respects, the ruling
on the demurrer has not changed.
Conclusion
Based on the
foregoing, Plaintiff’s motion for reconsideration is DENIED. The Court
reconsiders the August 11, 2023 ruling as to Defendant’s demurrer on its own
motion and OVERRULES the second cause of action for “Violation
of the United States Constitution.”
Moving party is
ordered to give notice.