Judge: Teresa A. Beaudet, Case: 22STCV26687, Date: 2023-11-14 Tentative Ruling

Case Number: 22STCV26687    Hearing Date: November 14, 2023    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On August 17, 2022, Plaintiff Sri Ramanathan (“Plaintiff”), in pro per, filed this action against G2 Secure Staff LLC (“G2 Secure Staff”) and Saeed Bholat (“Bholat”) (jointly, “Defendants”). The Complaint asserts causes of action for (1) FEHA retaliation, (2) FEHA retaliation, (3) failure to prevent discrimination, (4) “prevention of employee’s Weingarten rights – FEHA discrimination,” (5) “civil rights violation – use of video camera – FEHA discrimination,” (6) “failure to provide progressive discipline – FEHA discrimination,” (7) “failure to provide evidence – FEHA discrimination,” and (8) wrongful termination in violation of public policy.[1]

Defendants moved for an order compelling binding arbitration and staying all proceedings. On March 7, 2023, the Court issued an order granting Defendants’ motion to compel arbitration.

Plaintiff now moves “for an order granting reconsideration of Defendants’ prior Motion to Compel Arbitration.” Defendants oppose.

Discussion

A.    Procedural Issues

As an initial matter, on March 17, 2023, Plaintiff a motion for reconsideration. On June 23, 2023, Plaintiff filed a “Notice of Errata Re: Memorandum of Points and Authorities in Support of Plaintiff’s Notice of Motion and Motion for Reconsideration of Prior Court Order.” The Notice of Errata states, inter alia, that “on March 17, 2023, Plaintiff…filed a Notice of Motion and Motion for Reconsideration of the Court’s Ruling dated March 7, 2023. Unfortunately, the Memorandum of Points and Authorities to the said Motion contained several inadvertent errors and omissions, and therefore, in order to assist the court, a revised memorandum of points and authorities, including the said corrections and omissions is attached hereto marked Exhibit A, which is intended to replace the original version of the memorandum of points and authorities.” (Plaintiff’s Notice of Errata at p. 2:2-8.)

As an initial matter, in the opposition, Defendants assert that Plaintiff’s Notice of Errata is improper must be disregarded. Defendants cite to Choi v. Sagemark Consulting (2017) 18 Cal.App.5th 308, 320, where “[o]n the day of the summary judgment hearing, plaintiffs sought to supplement the record with evidence to bolster their arguments opposing the statute of limitations defense. In a notice of errata, plaintiffs’ counsel declared that two deposition exhibits had been inadvertently omitted…Plaintiffs also requested leave to file a motion to amend their separate statement.” “The trial court refused both requests and rejected plaintiffs’ legal arguments that relied on the late-filed evidence.” (Id. at p. 321.) The Court of Appeal in Choi found that “[t]he trial court considered and rejected plaintiffs’ requests to submit additional evidence, noting the failure to comply with statutory requirements and the unfairness to defendants. This was a proper exercise of the court’s discretion.” (Id. at p. 322.)

Here, Plaintiff does not provide any legal authority demonstrating that it is appropriate to file a Notice of Errata attaching a revised memorandum of points and authorities in support of Plaintiff’s motion. In addition, Plaintiff has not shown that the revised memorandum of points and authorities is timely under Code of Civil Procedure section 1008, subdivision (a).

In the reply, Plaintiff argues that “Plaintiff’s Errata Notice, in fact, is in full compliance with CCP section 473 and therefore merits consideration by the court…” (Reply at p. 8:27-28.) Plaintiff cites to Code of Civil Procedure section 473, subdivision (a)(1), particularly, the portion of this provision providing that “[t]he court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” The Court does not see how this provision is relevant to Plaintiff’s notice of errata amending his memorandum of points and authorities.

In light of the foregoing, the Court disregards Plaintiff’s notice of errata and revised memorandum of points and authorities.

The Court also notes that Plaintiff’s reply in support of the motion contains new evidence and new arguments raised for the first time in the reply. The Court notes that “¿[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.¿” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453¿.) In addition, “¿[t]he general rule of motion practice…is that new evidence is not permitted with reply papers.¿”¿(¿Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Thus, the Court declines to consider the new arguments and evidence in the reply.

B.     Legal Standard

Code of Civil Procedure section 1008, subdivision (a)¿ provides as follows: 

“[W]hen 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.”  

Pursuant to Code of Civil Procedure section 1008, subdivision (e), “[t]his section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions,  and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (¿¿Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500¿¿; ¿¿Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342 [“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.”]¿¿; ¿New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213 [“The burden under section 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 the trial.”]¿.)

As set forth above, Plaintiff moves for an order granting reconsideration of Defendants’ motion to compel arbitration. The Court’s March 7, 2023 Order on Defendants’ motion to compel arbitration provides in part as follows:

“Plaintiff also cites to Code of Civil Procedure section 1281.2, subdivision (c), which provides that ‘[o]n petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:…(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition...’…

Plaintiff also attaches as Exhibit ‘6’ to the Complaint a December 14, 2021 NLRB Charge against G2 Secure Staff. (Compl., ¶ 13, Ex. 6.) Defendants argue that ‘[t]o the extent Plaintiff attempts argue that this motion to compel arbitration should be denied based on the pending NLRB charge(s), the NLRB only has jurisdiction over the question of whether G2 Secure Staff/the Union violated federal labor law…As such, there is no basis for a finding that the NLRB could issue a conflicting determination regarding the issue of whether G2 Secure staff wrongfully terminated Plaintiff on the bases alleged in his Complaint or that the outcome of an arbitration relating to the issues alleged in the litigation might implicate issues that would be decided by the NLRB in the unfair labor practice cases.’ (Reply at p. 7:26-8:5.)

Indeed, Plaintiff’s December 14, 2021 NLRB Charge alleges that the basis of the Charge is that ‘[w]ithin the past 6 months, the Employer violated Section 8(a)(1) of the National Labor Relation [sic] Act by: 1. maintaining an unlawful arbitration agreement that was not properly disclosed to employees thereby by depriving employees of their due process and right to go to Court; and 2. enforcing an unlawful arbitration agreement.’ (Compl., ¶ 13, Ex. 6, Item 2.) Plaintiff does not allege a cause of action in the instant Complaint for violation of the National Labor Relations Act. Thus, the Court does not find that there is a ‘possibility of conflicting rulings on a common issue of law or fact’ for purposes of Code of Civil Procedure section 1281.2, subdivision (c).” (March 7, 2023 Order at pp. 5:21-7:14.)

In the instant motion, Plaintiff cites to the portion of the Court’s March 7, 2023 Order providing that, “Plaintiff does not allege a cause of action in the instant Complaint for violation of the National Labor Relations Act. Thus, the Court does not find that there is a ‘possibility of conflicting rulings on a common issue of law or fact’ for purposes of Code of Civil Procedure section 1281.2, subdivision (c).” (March 7, 2023 Order at p. 7:11-14.) Plaintiff appears to argue that this finding is a “new circumstance” under Code of Civil Procedure section 1008, subdivision (a). In the opposition, Defendants assert that “[t]his Court’s interpretation and application of the law in its Order clearly does not constitute a new circumstance under Gilberd because it does not present a new or different fact, law, or circumstance sufficient to meet Plaintiff’s burden under section 1008.” (Opp’n at p. 3:19-21.) The Court agrees. The Court does not see how the foregoing finding in the March 7, 2023 Order constitutes a “new circumstance” for purposes of Code of Civil Procedure section 1008, subdivision (a).

Defendants assert that “[a] court’s interpretation and application of the law cannot constitute as a ‘new circumstance’ simply because Plaintiff did not agree with it.” (Opp’n at p. 3:12-13.) Indeed, in Gilberd v. AC Transit, supra, 32 Cal.App.4th at page 1500, cited by Defendants, the Court of Appeal noted that “[a]ccording to the plain language of the statute, 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.’ Respondent urges that this jurisdictional prerequisite was satisfied in one of two ways: first, respondent argues that the trial court misinterpreted California law in its initial decision and, therefore, the respondent relied upon ‘different’ law when it reiterated its prior reasoning and authorities for rejecting appellant’s Government Code section 946.6 petition…Since in almost all instances, the losing party will believe that the trial court’s ‘different’ interpretation of the law or facts was erroneous, to interpret the statute as the respondent urges would be contrary to the clear legislative intent to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it.”

Plaintiff also argues in the motion, “different laws applicable to suit new circumstances created [sic].” (Mot. at p. 4:23.) Plaintiff asserts that “[t]hese Different Laws and Rules can be broadly divided into two categories: A. Conflict Preemption. B. Obstacle Preemption.” (Mot. at p. 5:4-6.) However, Plaintiff does not provide any analysis in the motion regarding how any purported different law would impact the Court’s March 7, 2023 Order on Defendants’ motion to compel arbitration.

In addition, Plaintiff argues that “[a]s is stated in the Declaration of SRI RAMANATHAN explanation for the failure to produce evidence at an earlier time, and facts showing that Motion to Reconsider was made properly, upon discovery of new or different evidence [sic].” (Mot. at p. 8:5-7.) But as noted by Defendants, Plaintiff does not identify which new evidence he is purportedly presenting. As set forth above, “[t]he 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).)

Plaintiff also asserts that “[i]n the event Plaintiff’s Motion in this could not succeed, in the interest of fairness and justice, Plaintiff requests that the court make its ‘own motion’ and grant the relief Plaintiff is seeking, that is the revocation of the court’s previous order.” (Mot. at p. 6:11-13.) Plaintiff cites to Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097, where the California Supreme Court “conclude[d] that sections 437c, subdivision (f)(2), and 1008 prohibit a party from making renewed motions not based on new facts or law, but do not limit a court’s ability to reconsider its previous interim orders on its own motion, as long as it gives the parties notice that it may do so and a reasonable opportunity to litigate the question.” (Emphasis in original.) The Le Francois Court found that “[w]e cannot prevent a party from communicating the view to a court that it should reconsider a prior ruling (although any such communication should never be ex parte). We agree that it should not matter whether the judge has an unprovoked flash of understanding in the middle of the night or acts in response to a party’s suggestion. If a court believes one of its prior interim orders was erroneous, it should be able to correct that error no matter how it came to acquire that belief. For example, nothing would prevent the losing party from asking the court at a status conference to reconsider a ruling. But a party may not file a written motion to reconsider that has procedural significance if it does not satisfy the requirements of section 437c, subdivision (f)(2), or 1008.” (Id. at p. 1108 [internal quotations and citations omitted, emphasis in original].) The Court further noted that “[t]o be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion—something we think will happen rather rarely—it should inform the parties of this concern, solicit briefing, and hold a hearing.” (Ibid.) Here, the Court does not find that Defendants have shown that the Court’s March 7, 2023 Order was erroneous.

In addition, pursuant to Code of Civil Procedure section 1008, subdivision (c), “[i]f a court at any time determines that there has been a change of law that warrants it to reconsider a prior order it entered, it may do so on its own motion and enter a different order.” The Court does not find that Plaintiff has demonstrated there has been a change of law that warrants the Court to reconsider the March 7, 2023 Order.

In light of the foregoing, the Court denies Plaintiff’s motion for reconsideration.

Conclusion

Based on the foregoing, Plaintiff’s motion for reconsideration is denied.

Defendants are ordered to give notice of this Order. 

DATED:  November 14, 2023                                                                                   

________________________________

Hon. Rolf M. Treu 

Judge, Los Angeles Superior Court