Judge Steven A. Ellis, Case Number: 20STCV15125, Date: 2023-06-20 Tentative Ruling

Judge: Steven A. Ellis, Case: 20STCV15125, Date: 2023-06-20 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE. 4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020)

IMPORTANT: In light of the COVID-19 emergency, the Court encourages all parties to appear remotely. The capacity in the courtroom is extremely limited. The Court appreciates the cooperation of counsel and the litigants.

ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV15125 Hearing Date: June 20, 2023 Dept: 29

TENTATIVE

Plaintiff’s motion for reconsideration of the Court’s April 20, 2023 order dismissing Defendants Tiffany Paige and Joseph Franzetta without prejudice is GRANTED.

Legal Standard

The court retains the inherent authority to amend its own orders on its own motion. (Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1107.) The court’s inherent authority to reconsider and correct its own orders is constitutionally derived. (Walker v. Superior Court¿(1991) 53 Cal.3d 257, 267.) A court “must exercise due consideration before modifying, amending, or revoking its prior order.” (Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 189.) A court’s inherent power to reconsider interim rulings may be exercised “even in the absence of newly discovered evidence” and “[e]ven without a change of law.” (Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1231, Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237.) Thus, the inherent power is distinct from a court’s power under Code of Civil Procedure (“CCP”) § 1008 following a motion for reconsideration. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 389: “Consequently, we hold that the separation of powers doctrine precludes an interpretation of section 1008 that would deprive a trial court of jurisdiction to reconsider its own interim orders sua sponte.”)

Discussion

Plaintiff seeks reconsideration of the Court’s April 20, 2023 order dismissing Defendants Tiffany Paige and Joseph Franzetta (“Defendants”). Plaintiff argues that he has new or different facts, circumstances, or law, which justify the Court’s reconsideration of its previous order. At the time of the OSC hearing on April 20, 2023, Plaintiff’s counsel, Aaron Kohanzadeh, Esq. did not have the most recent information regarding service on Defendants. Plaintiff’s attorney service served Defendants on April 19, 2023 (before the OSC hearing) and filed the proof of service on April 20, 2023 (shortly after the OSC hearing). (Kohanzadeh Decl., Exhs. 3, 4.) The court dismissed Defendants because of Plaintiff’s failure to file Proof of Service of Summons & Complaint on Defendants, but in fact a proof of service was filed on the day of the OSC hearing. Plaintiff argues: (a) that service was timely; (b) that under CCP section 583.210(b), Plaintiff had 60 days from the service deadline to file the proof of service; and therefore (c) that the filing of the proof of service was timely.

The Court will exercise its inherent authority and reconsider and correct its own order sua sponte.

CCP § 583.210 provides:

(a) The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.

(b) Proof of service of the summons shall be filed within 60 days after the time the summons and complaint must be served upon a defendant.

An action is “commenced” when the original complaint is filed against the defendants named therein; the three-year period for service and filing proof of service runs from that date, rather than from the date of any later amended complaint, even if the amended complaint is the only one served. (CCP §411.10; Perati v. Atkinson (1964) 230 Cal.App.2d 251, 253-254.)

Plaintiff filed the complaint in this matter on April 20, 2020. On April 20, 2023, this Court dismissed Defendants without prejudice pursuant to CCP sections 583.250 and 583.210 at an Order to Show Cause Re: Dismissal for Failure to File Proof of Service. (The Court noted that only proof of service on defendant Enterprise Rent-A-Car company of Los Angeles was filed.)

On the same day, Plaintiff filed proof of service, which indicates that Defendants were served on April 19, 2023. Therefore, Plaintiff made a sufficient showing that Defendants were served within three years of filing the complaint. In addition, Plaintiff had 60 days to file this proof of service under CCP § 583.210(b). As a result, the Court reconsiders its order and vacates the dismissal of Defendants.

Conclusion

Plaintiff’s motion for reconsideration of the April 20, 2023 ruling dismissing Defendants Tiffany Paige and Joseph Franzetta is GRANTED. The Court vacates the dismissal of Defendants Tiffany Paige and Joseph Franzetta.

Moving party is ordered to give notice.

Note: once the Court has posted/issued a tentative ruling, the Court has the inherent authority to deny a party’s request to withdraw the motion and to adopt the tentative ruling as the order of the Court.