Judge Shirley K. Watkins, Case 19STCV37977 2023-04-20 Tentative Ruling

Judge: Shirley K. Watkins, Case: 19STCV37977, Date: 2023-04-20 Tentative Ruling

If ALL parties submit on the tentative, then no appearance is necessary unless some other matter (i.e., Case Management Conference) is on calendar. It is not necessary to call the court to request oral argument. Oral argument is permitted on all tentative rulings.

Case Number: 19STCV37977 Hearing Date: April 20, 2023 Dept: T

19STCV37977 MAGDALENA FATIMA SALINAS, et al. vs TRANSIT SYSTEM,

TENTATIVE RULING ON PLAINTIFF GONZALEZ’ MOTION FOR RECONSIDERATION AND MOTION FOR CCP SECTION 473 RELIEF: DENY.

The court heard oral argument on defendant Universal Church’s MSJ/MSAI against Plaintiff Gonzalez on 3/8/2023. At that time, counsel for Plaintiff Gonzalez (20STCV37023 - Gonzalez v. Transit), indicated that due to attorney error, plaintiff’s evidence in opposition to the motion was inadvertently not been timely filed. (It was filed on 3/7/2023.) Plaintiff had prior to the hearing filed late the “Declaration of Matthew Joy Re Plaintiff Rosa Paniagua Gonzalez’s Evidence in Opposition to Defendant The Universal Church, Inc.’s Motion for Summary Judgment” along with a declaration of attorney error. The court heard oral argument and took the matter under submission. In the court’s ruling on the submitted matter, the court stated: “At the hearing on oral argument concerning the opposition of Plaintiff Gonzalez to the motion, counsel for plaintiff, Matthew Joy filed a declaration which indicated that he committed an error by failing to timely file his "Declaration of Matthew Joy re Plaintiff Rosa Paniagua Gonzalez’s Evidence in Opposition." The court accepts his declaration of error and considers the late filed declaration (discussed below).” The, therefore, court did take into consideration Matthew Joy’s late filed declaration, and it is discussed in the court’s ruling of 3/10/2023. The motion for reconsideration erroneously states that the “missing Declarations, caused by counsel’s excusable mistake, resulted in the Court not considering the evidence when rendering its ruling. Thus, Plaintiff was deprived of a full hearing on the merits of her Opposition to the Motion for Summary Judgment.” This is incorrect. The court did consider the late filed "Declaration of Matthew Joy re Plaintiff Rosa Paniagua Gonzalez’s Evidence in Oppositio and it is so stated in the court’s final ruling. The court stated:

“Specifically, as to Gonzalez Plaintiff, Gonzalez Plaintiff failed to submit any declarations in support of the opposition other than the late filed Declaration of Matthew Joy. The declaration is merely of counsel stating “facts” based on “personal knowledge” of the issues in this case. The declaration states no foundation for his "personal knowledge." His declaration is not admissible on that ground. To the extent he has identified documents which he believes creates a triable issue of fact, the court does not find that these documents create a triable issue. Notably, however, there is no declaration from Ms. Gonzalez opposing this motion. Furthermore, the response to the separate statement makes assertions of fact but they are unsupported by any evidence. For instance, the separate statement states that an ostensible agency was created but fails to set forth any evidence of justifiable reliance on the part of Ms. Gonzalez. There is no evidence that Ms. Gonzalez knew or believed that Defendant had anything to do with the buses as she has not provided any declaration testimony. Plaintiff also fails to submit its own separate statement of material facts in dispute. Therefore, there is nothing in the late filed Declaration of Matthew Joy re Plaintiff Rosa Paniagua Gonzalez’s Evidence in Opposition which causes the court to change its tentative ruling as to plaintiff Gonzalez. Without a declaration from Gonzalez Plaintiff, there is no evidence to support the contention that an ostensible agency existed because Gonzalez Plaintiff has not submitted evidence to show that she saw the flier prior to the accident and relied upon it. On this defect, Gonzalez Plaintiff failed to meet her burden of proof to show that a triable issue of fact exists. Defendant’s MSJ/MSA as to Gonzalez Plaintiff is GRANTED.”

As the motion for reconsideration contains no additional evidence for the court to consider, the motion for reconsideration is denied. The court notes that the reconsideration motion itself was filed late. CCP section 1008 requires the motion to be filed within 10 days. The court’s ruling was issued on 3/10/2023 and served by mail that date. The reconsideration motion should have been filed by 3/15/2023. It was not filed under 3/24/2023 and this serves as an independent reason to deny the motion for reconsideration.

Additionally, there was a CCP section 473(b) motion, but that motion is moot because the court already considered the late filed declaration before it issued its final ruling. Therefore, there is no additional ground to grant relief and that motion is also denied.