Judge Stephen Morgan, Case 21AVCV00627 2022-12-22 Tentative Ruling

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The instant case arises from an agreement governing the sale of a restaurant (the “Agreement”), “A Mexican Grill” (the “Restaurant”), located at 606 E. Avenue K, Suite 103 in Lancaster, CA.¿ On or about December 28, 2018, Plaintiffs Gerardo Juarez Guadalupe (“Guadalupe”) and Elvira¿Orihuela¿Rodriguez (“Rodriguez” and collectively, “Plaintiffs”) agreed¿in writing to lease the Restaurant for one year from owners Defendants Juana Carranza (“Carranza”) and Guillermo Farias (“Farias” and collectively, “Defendants”). (First Amended Complaint [“FAC”] Exh. 1.)¿

The operative pleading is the Second Amended Complaint (“SAC”), filed on April 30, 2021, which alleges six (6) causes of action for: (1) Specific Performance or Damages Based Upon Breach of Contract; (2) Breach of Written Contract; (3) Fraud, Deceit; (4) Intentional Infliction of Emotional Distress (“IIED”); (5) Breach of Fiduciary Duty; and (6) Violations of Cal. Civ. Code § 19040.2, et seq., and Cal. Code Civ. Proc. § 1160 (Forcible Detainer).

On April 12, 2022, the Court granted Plaintiffs’ Motion for Sanctions, imposing a terminating sanction in the form of rendering a judgment by default against Defendants.

On October 11, 2022, the Court amended the April 12, 2022 order. The Court stated:

Upon further reflection, the Court has determined that its prior decision did not dispose of the full measure of Plaintiff’s requested relief. At this time, the Court also strikes Defendants’ Amended Cross-Complaint filed November 12, 2020.

On October 11, 2022, the Court also held a hearing on Defendants’ the Motion to Set Aside/Vacate Default (“Motion to Set Aside”). The Court denied the Motion.

On December 05, 2022, Plaintiffs filed their Opposition to the Motion for Reconsideration.

No Reply has been filed. “. . .[A]ll reply papers [shall be filed with the court and a copy served on each party] at least five court days before the hearing.” (Cal. Code Civ. Proc. § 1005(b).) As such, a Reply was due no later than December 15, 2022. Should a Reply be filed, it is now untimely.

When 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 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.

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.)

Objections – The Court believes that Plaintiffs are objecting to certain evidence presented with the Motion for Reconsideration, but it is unsure as objections are only mentioned in the filed proposed order.

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

Plaintiffs have not followed Cal. Rules of Court, Rule 3.1354(b) and, as such, the Court does not rule on their objections.

On October 11, 2022, the Court provided an oral tentative ruling to deny the Motion to Set Aside as Defendants required the assistance of a Spanish interpreter. The Court interpreted the Motion to Set Aside/Vacate Default to apply to both Defendants, though the substance focused on Carranza. The Court explained to Defendants that their presentation of (1) misplacing one of the amended complaints; (2) Carranza’s otitis, high blood pressure; (3) Carranza’s partner’s symptoms of COVID-19; (4) that Carranza timely moved to set aside the default; and (4) case precedent showing that the law favors disposing of cases on their merits were inapposite as the default was the result of the Motion for Sanctions, not failure to respond as Carranza presents.

Both parties presented oral arguments regarding the Motion to Set Aside/Vacate Default.

The Court explained that it was not inclined to vacate the default. Defendants substituted their counsel, Natalie Panossian-Bassler, on April 06, 2022 to proceed in pro per. This rendered Natalie Panossian-Bassler’s Motion to be Relieved moot. The Court also notes that the Substitutions of Attorney was filed 21 days after the Motion for Sanctions was filed. Further, Defendants failed to oppose the Motion for Sanctions, did not appear for the hearing, and failed to partake in the case until June 15, 2022 when they filed a Challenge to Judicial Officer – Preemptory (170.6). At that point, Defendants still did not seek to address the terminating sanctions.

The Court took the matter under submission prior to issuing its ruling denying the Motion to Set aside. Department A14’s Judicial Assistant under Sherri R. Carter, Executive Officer and Clerk of Court for the Superior Court of California, County of Los Angeles, served d the Minute Order (Hearing on Motion to Set Aside/Vacate Default (CCP 473.5); Or...) and Amended Order After Hearing/Amended Statement of Decision on October 11, 2022. (See Certificate of Mailing.) The Court notes that the date of the signature is different from the date the Certificate of Mailing was filed (see Clerk’s File Stamp). (Id.) The Court treats this as a Scrivener’s error as (1) the file stamp is a physical stamp; and (2) despite the error of the date in the signature line, it is patent that the document was filed on October 11, 2022.

It appears that Defendants are moving for reconsideration on the basis of new or different facts, circumstances, or law. Defendants present the following new or different facts:

Plaintiffs argue that (1) Defendants fail to meet their burn under Cal. Code Civ. Proc. § 1008 as the Motion for Reconsideration did not provide new or different circumstances, facts, or law and the parties had an in person meet & confer related to discovery compliance in November/December 2021. In passing, Plaintiffs also present that the Motion for Reconsideration is not timely. (Opposition 2:6-8 [“Defendants have failed to timely seek judicial review of this court’s rulings and no new information that the Court may properly consider has been presented by Defendants.”].)

First, as Cal. Code Civ. Proc. § 1008 imposes a 10 day after service of written notice of entry of the order upon the party seeking reconsideration. Defendants have filed this Motion for Reconsideration on October 24, 2022, thirteen days after the service of written notice of entry of the order. The Motion for Reconsideration is untimely.

Second, had the Court considered the Motion for Reconsideration, the only new fact presented is the declaration of Defendants’ own service processor for discovery responses, showing that they were served on August 24, 2022. The service of discovery responses would not have impacted the Motion for Sanctions.

The Court notes that Defendants argue that the Court can: (1) sua sponte reconsider a motion based on its own realization that the prior ruling was erroneous, and not based on a determination that the party's invalid motion should be granted on its merit (citing Marriage of Barthold (2008) 158 Cal.App. 4th 1301, 1308–1309, 1314), and (2) the limitations of Cal. Code Civ. Proc. § 1008, including the 10-day time limit, do not apply to such sua sponte actions (citing Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107-1109). The Court does not believe its prior ruling was erroneous based on the evidence proffered at the time of the Motion for Sanctions.

Defendants Juana Carranza and Guillermo Farias’ Motion for reconsideration is DENIED.

[1] The Court notes that while Defendants have written “08/24/2021” in their motion, the declaration of the process server actually states “08/24/2022.” (See Motion 12:6-8 and Exh. A.)