Judge Serena R. Murillo, Case BC642321 2023-01-20 Tentative Ruling

Judge: Serena R. Murillo, Case: BC642321, Date: 2023-01-20 Tentative Ruling

Case Number: BC642321 Hearing Date: January 20, 2023 Dept: 29

TENTATIVE

Plaintiff’s motion for reconsideration of the Court’s July 1, 2022 ruling is DENIED.

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 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.)

Discussion

Plaintiff argues that he has new or different facts, circumstances, or law, which justify the Court’s reconsideration of its July 11, 2022 ruling granting Defendants’ motion for an acknowledgement of satisfaction of judgment. Such purported new facts and circumstances that this Court did not consider are: (1) the Court did not consider Plaintiff’s opposition, which was filed on July 8, 2022. Plaintiff previously moved this court ex parte to continue the hearing date to allow him to file a timely opposition since Plaintiff’s counsel was engaged in trial; (2) Plaintiff did not attend the hearing on July 11, 2022, because he was travelling outside the United States; and (3) Defendants never paid the judgment.

However, the fact that Plaintiff’s counsel did not appear for oral argument is not a proper ground for reconsidering a motion ruling. (See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 (holding that alleged fact that party seeking reconsideration had not intended to waive oral argument did not constitute a new fact under Section 1008).)

Additionally, the other reasons submitted (that Plaintiff’s opposition was not considered, and that Defendants have not paid the judgment) are not new facts at all. Plaintiff already argued in his late-filed opposition that Defendants did not pay the judgment. Therefore, this alleged new fact was already produced at the time of the prior motion. Moreover, Plaintiff filed his opposition on July 8, 2022, just three days before the hearing on this motion, and therefore, the Court properly exercised its discretion in disregarding the late-filed opposition.

Even if the Court were to accept Plaintiff’s contention that the judgment was not paid by Defendants and that they offered no evidence that they did, are new facts, Plaintiff has not provided any credible explanation as to why he could not have filed his opposition earlier. “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. 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.) While Plaintiff argues he was engaged in trial on June 15 to June 30, 2022, and could not timely file an opposition, as Defendant points out, on June 24, 2022, Plaintiff filed an ex parte application requesting the motion date be continued, and also filed another motion on June 28, 2022 asking the motion date be continued. The filing of these papers severely undercuts any argument that Plaintiff acted diligently in not producing the “new facts” in the prior motion because he was engaged in trial. If Plaintiff had time to file those motions while engaged in trial, then Plaintiff had time to file a timely opposition in this matter. Because he did not, he has not shown diligence. Moreover, there is no explanation as to why Plaintiff waited until July 8, 2022 to file his one-page opposition, when he was finished with his trial on June 30, 2022. Again, this is not diligent.

Lastly, even if the Court were to accept Plaintiff’s argument that these facts constitute new facts and Plaintiff was diligent, and reconsiders the motion, Defendants again have sent another check, showing that the judgment was in fact paid. Defense counsel avers that on September 14, 2022, she sent an email to Plaintiff’s counsel stating the check was delivered to his office at their requested address and signed by R. Rivera. She attached the FedEx tracking information confirming the check was delivered and received by Plaintiff’s office. The check was for the judgment amount of $9,000, and the check number was 558733223. (Moskovian Decl., ¶ 16; Exh. 6.) Defendant has not filed a reply and has not indicated otherwise.

Therefore, Plaintiff failed to meet his burden under section 1008 to provide new or different facts which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.

Conclusion

Based on the foregoing, Plaintiff’s motion for reconsideration of the Court’s July 11, 2022 ruling is DENIED.

Moving party is ordered to give notice.