Judge: Serena R. Murillo, Case: 21STCV36538, Date: 2023-04-12 Tentative Ruling
Case Number: 21STCV36538 Hearing Date: April 12, 2023 Dept: 29
TENTATIVE
Plaintiff’s motion for reconsideration is
DENIED. However, the request to waive bond is GRANTED. Defendant’s request for
sanctions is DENIED.
Evidentiary Objections
Defendant’s Objections to
Plaintiff Ahren’s declaration are OVERRULED.
Defendant’s Objections to Shkolnikov’s
Declaration
·
The
following objections are OVERRULED: 1, 3
·
The
following objections are SUSTAINED: 2
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.)
Section 1008,
subdivision (e) states: “No application to reconsider any order ... may be
considered by any judge or court unless made according to this section.” (Code Civ. Proc., § 1008(e).) “Section 1008 is
the exclusive means for modifying, amending or revoking an order. That
limitation is expressly jurisdictional.” (Gilberd v. AC Transit (1995)
32 Cal.App.4th 1494, 1499.)
“A motion for
reconsideration may only be brought if the party moving for reconsideration can
offer ‘new or different facts, circumstances, or law which it could not, with
reasonable diligence, have discovered and produced at the time of the prior
motion. (Citations.) A motion for reconsideration will be denied absent a strong
showing of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; Forrest
v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th
183, 202 disapproved of and overruled on unrelated grounds
in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172
(footnote 3); New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 212–213; Baldwin v.
Home Sav. of America. (1997) 59 Cal.App.4th 1192,
1199.)
There
is a strict requirement of 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.)
Discussion
Plaintiff moves for reconsideration of the Court’s March 1, 2023
ruling granting Defendant’s motion requiring Plaintiff to post an undertaking
in the amount of $22,500, arguing that after the hearing, Plaintiff informed
Plaintiff’s counsel that she lacks the financial means to post bond, which is a
new fact or circumstance.
However, Plaintiff has not shown diligence.
Plaintiff’s counsel should have asked Plaintiff whether she had the financial
means to post bond when Defendant filed its motion. To wait until after the
ruling to ask Plaintiff, rather than when Plaintiff was preparing the
opposition to Defendant’s motion, shows a lack of diligence. As such, a motion
for reconsideration cannot be granted here.
Notwithstanding
the above analysis in connection with a motion for reconsideration, the Court
construes Plaintiff’s motion as one for a waiver of the undertaking due to her
indigency. The court has the discretion
whether to waive a bond. (Alshafie v. Lallande (2009) 171
Cal.App.4th 421, 432. “[A] court’s discretion
must be exercised in conformity with the spirit of the law and in a manner to
subserve and not to impede or defeat the ends of substantial justice.” (Id.
at 431–432.) The court may, in its discretion, waive the bond requirement
if the court determines that the principal is unable to give the bond because
the principal is indigent and is unable to obtain sufficient sureties. (Code
Civ. Proc., § 995.240.) In exercising its discretion, the court shall
take into consideration all relevant factors, including but not limited to the
character of the action or proceeding, the nature of the beneficiary, and the
potential harm to the beneficiary if the provision for the bond is
waived. (Code Civ. Proc., § 995.240.) “The party seeking relief
from the requirement of posting a bond or undertaking has the burden of proof
to show entitlement to such relief.” (Williams v. Freedomcard, Inc.
(2004) 123 Cal.App.4th 609, 614.)
Plaintiff states
that she does not own any real estate or tangible assets from which she could
borrow money. (Ahrens Decl., ¶ 6.) She works for a physical therapy
facility in Colorado, and makes $16.75 an hour, working 40 hours per week.
(Id., ¶¶ 7,
9.) Her net income is $2,000 a month, but her rent costs $500 a month, and she
also has monthly expenses for her car lease, insurance, gas, and food, among
other things, that amount to over $1,500 per month. (Id., ¶¶ 10-20.) She
further states that she las $500 in unpaid medical bills, she had to negotiate
deferments on her credit card bills several times this year, and she is barely
able to meet her monthly obligations. (Id., ¶¶ 21, 23-24, 26.)
The Court finds that Plaintiff has sufficiently demonstrated she is indigent and
will therefore waive the posting of an undertaking.
Defendant argues that Plaintiff claims indigency,
relying on her own declaration. That declaration includes conclusory statements
about her monthly income and expenses, without documentation or foundation. Defendant
also argues that her declaration also omits any detail regarding her personal
assets or lack thereof; whether she has resources to assist her in posting the
bond, such as friends and family; whether she tried to obtain a bond; or how
much a bond would cost. Although
this information may assist with the Court’s determination, there is no
requirement that Plaintiff provide it. (Alshafie v. Lallande
(2009) 171 Cal.App.4th 421, 435, fn. 10.) Moreover, Plaintiff has stated
she does not have tangible assets. Lastly, the Court has overruled the
objections to Plaintiff’s declaration.
Defendant also argues Plaintiff did not
seek forma pauperis status. A plaintiff is not
required to request a determination of in forma pauperis. Rather, the
court has discretion to waive the bond requirement for others whose individual
situation justifies a waiver under the circumstances of the particular case.
“Not only must the courts exempt poor people entirely, but they may have to
reduce the security bond required for middle income litigants, as well.” (Alshafie v. Lallande (2009) 171 CA4th 421, 436.)
Defendant requests sanctions under CCP section 128.7 for violation
of CCP section 1008 in filing this motion. However, CCP section 128.7 requires
the filing of a motion separate from any other motion. (CCP section
128.7(c)(1).) Moreover, the Court construes this motion for a waiver of the
bond requirement. As such, the request for sanctions pursuant to CCP section
128.7 is denied.
Conclusion
Based on the foregoing, Plaintiff’s motion for reconsideration is
DENIED. However, the request to waive bond is GRANTED. Defendant’s request for
sanctions is DENIED.
Moving
party is ordered to give notice.