Judge: Stephen P. Pfahler, Case: 22CHCV00289, Date: 2023-08-08 Tentative Ruling

Case Number: 22CHCV00289    Hearing Date: August 8, 2023    Dept: F49

RECONSIDER

MOVING PARTY: Defendants, Charles and Sheila Johnson

RESPONDING PARTY: Plaintiff, Dunn Investment Properties, Inc.

RELIEF REQUESTED

Motion for Reconsideration of the Order Granting Summary Adjudication on the Issues of Possession

SUMMARY OF ACTION

On May 10, 2022, Plaintiff Dunn Investment Properties, Inc. filed a complaint for Unlawful Detainer against Charles and Sheila Johnson. Plaintiff alleges rent increased from $7,411 to $20,000/month as of January 1, 2022. Defendant failed to make the lease payments due in March and April 2022, with an outstanding balance of $39,112 as of the complaint filing date.

On June 30, 2022, the court sustained the demurrer to the complaint. Plaintiff filed a first amended complaint for unlawful detainer on July 6, 2022. On August 2, 2022, the court denied the motion to bifurcate the action. On September 16, 2022, the court sustained the demurrer to the first amended complaint. On September 26, 2022, Plaintiff filed a verified second amended complaint.

On January 19, 2023, the court granted the motion to strike the second amended complaint. On January 26, 2023, Plaintiff filed the third amended complaint. On February 15, 2023, the court denied the motion to quash. On March 20, 2023, the court overruled the demurrer and denied the motion to strike the third amended complaint. Defendant answered the third amended complaint on April 3, 2023.

On May 30, 2023, the court granted Plaintiff’s motion for summary adjudication on possession.

RULING: Denied.

Request for Judicial Notice: Denied.

Defendants Charles and Sheila Johnson move for reconsideration of the order granting summary adjudication on possession of the premises on grounds that the motion was prematurely filed and heard by the court. Defendants additionally challenge the propriety of the motion given two, concurrent pending unlawful detainer cases. Plaintiff Dunn Investment Properties, Inc. opposes the motion on grounds that the motion itself fails to comply with the required showing for reconsideration: the lack of any new facts or law, and an explanation for the failure to present the subject arguments at the time of the original hearing. On the substance of the motion, Plaintiff maintains all notice was duly and properly served, and the motion was properly and timely served and held. The court electronic filing system shows no reply filed at the time of the tentative ruling publication cutoff.

“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.”

(Code Civ. Proc., § 1008, subd. (a).)

The motion was filed on June 14, 2023, which is exactly 15 days from the date of mailing by the clerk on the order granting summary adjudication on May 30, 2023. Given the five days for mailed notice, the motion was timely filed.

“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.” (; 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; 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.) 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.)

The motion itself constitutes a re-argument of the underlying motion based on either resubmission of the prior opposition, or new disagreements not presented to the court at the time of the original hearing on May 30, 2023. On the new arguments, the motion lacks any explanation for the failure to present the subject arguments at the time of the hearing, and instead refers to the “body” of the motion itself for the showing of diligence. [See Declaration of Anthony Horaites.]

Even considering the merits, Defendants answered the third amended complaint on April 3, 2023. Plaintiff filed and served the motion for summary judgment on May 15, 2023. The argument relying on a previously served motion “70 days” before the answer finds support.

The challenge to service of a “Santa Anita” address [Motion, 3:25-4:2] improperly identifies the actual address city address listed on the notice, Santa Clarita. Even if Defendants sought to argue that Santa Clarita differs from Valencia for purposes of identification of the community, nothing in the motion establishes improper service as a result of identifying a community within the City of Santa Clarita. The court acknowledges the prior declaration of Charles Johnson in opposition to the motion, and continues to find no basis undermining the represented service simply based on the repeated statements of defendant. Nothing in the motion establishes the lack of mail delivery due to identification of one community over another within the same zip code and address via proof of certified mail. Again, other than a denial, the declaration also fails to address the photographic proof of posting at the identified address presented with the motion. The court otherwise declines to consider.

The court otherwise declines to consider the unrelated unlawful detainer or prior arguments a second time. The motion is DENIED.

In specially setting the subject motion for reconsideration in the July 5, 2023, ex parte order, the court specifically conditioned any stay on execution on the writ of possession condition of Defendant presenting a $19,000 cashiers check or money order no later than seven (7) days from the order. The order was mailed by the clerk on July 5, 2023. Not including the date of mailing, the check was due no later than July 21, 2023. The court electronic filing system shows no proof of any tender of any payment, and therefore a basis for the stay of the writ of possession.

A notice of appeal was filed on July 11, 2023. Defendant presents no basis for a stay based on the filed notice of appeal.

The stay is lifted and Plaintiff may proceed with the lockout.

Moving Defendant to provide notice.