Judge Steven A. Ellis, Case Number: 20STCV48251, Date: 2023-11-22 Tentative Ruling

Judge: Steven A. Ellis, Case: 20STCV48251, Date: 2023-11-22 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: 20STCV48251 Hearing Date: November 22, 2023 Dept: 29

TENTATIVE

The Court DENIES Plaintiff’s motion for reconsideration. The Court further DENIES Defendants’ request for monetary sanctions under Code of Civil Procedure section 128.5, subdivision (a).

The Court ORDERS Defendants to file a proposed order of dismissal of this action with prejudice within 15 days of the Court’s order.

Background

This arises from a motor vehicle accident that allegedly occurred on June 6, 2019. Plaintiff Elmer Lopez (“Plaintiff”) filed this action on December 17, 2020, alleging one cause of action for negligence against Defendants Michael Pourshalimi (erroneously sued as Mykel Toursalami), Ester Pourshalimi (erroneously sued as Chester Toursalami) (collectively, “Defendants”) and Does 1 through 50. On January 26, 2021, Defendant Michael Pourshalimi filed a cross-complaint against Plaintiff.

On May 24, 2023, the Court granted Defendants’ motion for terminating sanctions and dismissed the case with prejudice.

On October 25, 2023, Plaintiff filed a motion for reconsideration of the Court’s May 24, 2023 order granting Defendants’ motion for terminating sanctions and dismissing the case with prejudice. On November 8, 2023, Defendants opposed the motion. On November 13, 2023, Plaintiff replied.

Legal Standard

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).)

“Under Code of Civil Procedure section 1008, a party seeking reconsideration of a prior ruling upon an alleged different set of facts must ‘provide both newly discovered evidence and an explanation for the failure to have produced such evidence earlier. [Citation.]’ [Citation.]” (In re Marriage of Drake (1997) 53 Cal.App.4th 1139, 1168.) “The party seeking reconsideration must provide not just new evidence or different facts, but a satisfactory explanation for the failure to produce it at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457.)

Discussion

Plaintiff seeks for the Court to reconsider its May 24, 2023 ruling granting Defendants’ motion for reconsideration, as Plaintiff was not in Los Angeles at the time of the May 24, 2023 hearing and did not have access to a computer to sign a declaration. Plaintiff contends that information that was not previously in Plaintiff’s counsel’s possession can be presented to the Court and Plaintiff can be made available for a second deposition. Plaintiff contends that his forced travel to Mexico to visit a sick family member constitutes new facts warranting reconsideration. Plaintiff also contends that this case has been handled by three judges which may have facilitated a misunderstanding of the timeline in this case.

Plaintiff contends he attended his deposition but the Defendant was ill prepared and did not have a Spanish interpreter, and that the Court mistakenly granted Defendant’s prior motion to compel a second session of the deposition. Plaintiff contends this motion is timely since the May 24, 2023 minute order is not an effective dismissal and does not trigger the 10-day time limit under Code of Civil Procedure section 1008. Plaintiff then asks the Court to issue a signed order of dismissal if it denies the motion for reconsideration.

Defendants contend that Plaintiff’s motion for reconsideration is untimely, as Plaintiff filed this motion five months after the Court’s May 24, 2023 ruling, which exceeds the 10-day deadline provided under Code of Civil Procedure section 1008. Defendants also contend that the 60-day deadline for appeals has also passed under Rule 8.406, subdivision (a) of the California Rules of Court. Defendants further contend that Plaintiff has failed to present any new evidence, as the issue of Plaintiff’s visit to Mexico was discussed at the May 24, 2023 hearing and mentioned in the Court’s ruling. Defendants then contend they are entitled to sanctions under Code of Civil Procedure section 128.5, subdivision (a) due to Plaintiff’s filing of this motion.

Plaintiff contends a motion for reconsideration is broad in scope and that the Court may sua sponte reconsider the issues raised in a motion. Plaintiff reiterates arguments from his moving papers that he was attending a sick family member in Mexico and was not able to submit a signed declaration to the Court at the time the motion for terminating sanctions was held. Plaintiff contends he cannot file an appeal until there is a signed order of dismissal, and that the motion for reconsideration is timely because the Court never sent a signed order of dismissal to Plaintiff on May 24, 2023. Plaintiff contends the 10-day deadline under Code of Civil Procedure section 1008 is not triggered since the May 24, 2023 minute order was not signed. Plaintiff further contends that Defendants are not entitled to sanctions.

The Court has carefully considered the submissions from both sides and DENIES the motion.

First, Plaintiff’s motion is untimely. The Court mail served its May 24, 2023 minute order on Plaintiff on the same date. (Certificate of Mailing (5/24/23); Cal. Rules of Court, rule 3.1109, subd. (a).) This means the deadline for Plaintiff to file a motion for reconsideration was June 8, 2023, i.e., 15 days from the date of mailing. (Code Civ. Proc., §§ 1008, subd. (a); Id., § 1013, subd. (a).) Plaintiff did not file this motion for reconsideration until October 25, 2023, more than four months later.

Plaintiff’s contention that the mailing of the May 24, 2023 minute order did not trigger the time limit under Code of Civil Procedure section 1008 because that minute order was not signed is not supported by case law. Plaintiff cites to no legal authorities to support his contention. And there is authority to the contrary. (Baldwin v. Home Sav. Of America (1997) 59 Cal.App.4th 1192, 1199 [Code of Civil Procedure section 1008 applies to all orders, whether “final or interim”].) Since Plaintiff seeks reconsideration of the Court’s May 24, 2023 order, then the mailing on May 24, 2023 triggered the running of the time limit under Code of Civil Procedure section 1008. Whether that minute order constituted an order of dismissal is a different issue than whether the minute order was sufficient to start the clock running on the period to bring a motion for reconsideration.

Second, and independently, even if the Court were to treat Plaintiff’s motion as timely, it would still fail on the merits. The Court already addressed the issue of Plaintiff being in Mexico at the time of the hearing in its ruling on Defendants’ motion for reconsideration. (Minute Order (5/24/23), pp. 3-4.) This is not a new fact, as Plaintiff contends, and whether Plaintiff is able to provide a signed declaration on that point would not change the Court’s ruling on the Defendants’ motion for terminating sanctions.

Accordingly, the Court DENIES Plaintiff’s motion for reconsideration.

The Court does agree, however, that its May 24, 2023 minute order does not constitute an order of dismissal for purposes of appeal since it was not signed by the Court. (See Code Civ. Proc., § 581d; Hyundai Motor Am. v. Superior Ct. (2015) 235 Cal.App.4th 418, 426, internal citations omitted [“an unsigned minute order itself cannot serve as the judgment of dismissal.”]; compare City of Los Angeles v. City of Los Angeles Employee Relations Bd. (2016) 7 Cal.App.5th 150, 156-157 [signed minute order constituted appealable order of dismissal].)

Accordingly, the Court ORDERS Defendants to submit a proposed order of dismissal of this action with prejudice within 15 days of the Court’s order.

Finally, the Court DENIES Defendants’ request for monetary sanctions under Code of Civil Procedure section 128.5, subdivision (a). Violations of Code of Civil Procedure section 1008 are to be addressed under Code of Civil Procedure section 128.7. (Code Civ. Proc., § 1008, subd. (d) [“A violation of this section may be punished as a contempt and with sanctions as allowed by Section 128.7.”]) And, on the merits, Plaintiff’s argument about the need for a signed order to conclude proceedings in this court is correct.

Conclusion

The Court DENIES Plaintiff’s motion for reconsideration. The Court further DENIES Defendants’ request for monetary sanctions under Code of Civil Procedure section 128.5, subdivision (a).

The Court ORDERS Defendants to file a proposed order of dismissal of this action with prejudice within 15 days of the Court’s order.

Defendants to give notice.