Judge: Virginia Keeny, Case: 19VECV01307, Date: 2023-02-07 Tentative Ruling

Case Number: 19VECV01307    Hearing Date: February 7, 2023    Dept: W

harandi v. house, et al.

defendant jessica thomas’ motion for reconsideration of the court’s December 12, 2022 Ruling

Date of Hearing:        February 7, 2023                                Trial Date:       July 24, 2023

Department:              W                                                         Case No.:        19VECV01307

Moving Party:            Defendant Jessica Thomas

Responding Party:     Plaintiff Elizabeth Harandi

BACKGROUND

This is a legal malpractice action. Plaintiff hired Defendants Linda House, Galindo & Fox, and Marcia Galindo to represent her in the dissolution of her marriage.

Plaintiff alleges over the course of the representation, Defendant House committed a multitude of negligent acts including: failing to file a declaration which caused Plaintiff’s motion to be ineligible for attorney fees, failing to respond in writing how to report Plaintiff’s income to the court which caused the court to make an inaccurate and detrimental decision concerning Plaintiff’s finances, and failing to inform Plaintiff with the required promptness of developments in her case, amongst several other alleged negligent acts.

On September 12, 2019, Plaintiff filed a complaint alleging: 1) Professional Malpractice; 2) Breach of Fiduciary Duty; and 3) Breach of Contract.

After sustaining the demurrer to the third cause of action, Plaintiff filed a First Amended Complaint on March 10, 2020. On September 23, 2020, Defendant House filed a demurrer to the third cause of action and moved to strike Plaintiff’s additional causes of action. After the hearing, the court sustained, without leave to amend, Defendant House’s demurrer to the third cause of action and allowed to Defendant House to file a demurrer to the first and second causes of action of the FAC.

Plaintiff filed a Second Amended Complaint on January 25, 2021. On March 9, 2021, Plaintiff dismissed Defendant House with prejudice.

After obtaining leave of court, Plaintiff filed a Third Amended Complaint naming Jessica Thomas as Successor-In-Interest to Marcia Galindo and adding a declaratory relief cause of action.

[Tentative] Ruling

Defendant Jessica Thomas’ Motion for Reconsideration of the Court’s December 12, 2022 Ruling is DENIED.

discussion

Defendant Jessica Thomas moves this court for an order reconsidering the Order of the Court entered December 12, 2022 as to Defendant Thomas’ Motion to Compel Appearance and for Sanctions and for a new order re-imposing the appropriate monetary sanctions against Ms. Harandi and her attorney-of-record, Michael Shapiro, jointly and severally in an amount equal to $3,054.28.

Pursuant to Code of Civil Procedure section 1008(a), an affected party may, on noticed motion, request that the court reconsider its granting or denial of an “application for an order” based on “new or different facts, circumstances, or law.”  A motion for reconsideration must, among other things, be brought within 10 days of receiving notice of the challenged order, and be supported by a declaration establishing the existence of new or different facts and/or law.  (See CCP §1008(a).)

Defendant argues the court should reconsider its prior order dated December 12, 2022 since it conflicts with statutory law and depends upon findings not supported by the record.  However, ‘misconstruing evidence’ or the court’s purported failure to follow the express requirements of the Civil Discovery Act is not a new or different fact or circumstance. (See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500 holding “[w]hat respondent essentially argues is that section 1008 does not apply when the litigant disagrees with the trial court's ruling. 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.”)

Specifically, Defendant argues Mr. Shapiro’s contention that he recently substituted into the action is a red herring. However, Mr. Shapiro’s participation in May of 2022 is not new evidence. Even so, when determining whether sanctions are warranted in opposing a motion to compel pursuant to Code of Civil Procedure section 2025.450, the court may consider whether the opposing party acted with substantial justification or that other circumstances make the imposition of the sanction unjust. Although the court granted Defendant’s motion, the court believed Mr. Shapiro’s substitution into the action would make the imposition of the sanction unjust.

Defendant further contends there was no legitimate reason for the non-appearance and the court’s tentative even provided that there was no reason why both matters could not occur on the day in question. However, again, these issues are not new or different facts or circumstances. Moreover, the tentative the court issued did not constitute a judgment nor was it binding on the court. (CRC Rule, 3.1590(b).) Upon further review of Mr. Shapiro’s declaration, the court felt Mr. Shapiro’s failure to appear for the deposition due to his personal litigation would make the imposition of sanctions against Plaintiff and Mr. Shapiro unjust and the court altered its tentative.

Defendant also contends there was no meet and confer requirement under these circumstances and therefore, the court erred in declining Defendant’s request for monetary sanctions on this basis. However, as noted above, a claim that the court misinterpreted the law in its initial ruling is not grounds for reconsideration.

Lastly, Defendant argues it appears as though the court is granting Ms. Harandi and her attorney far more deference than is appropriate under the statutory scheme set forth in the Civil Discovery Act. Moreover, Defendant is concerned of the court’s bias as it had originally reduced Defendant’s request for monetary sanctions from $3,054.28 to $1,281.78. This court is not biased towards Plaintiff or Defendant. Even though Defendant feels that this court’s denial of their monetary request for sanctions is evidence of bias, “a trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review.” (People v. Guerra (2006) 37 Cal.4th 1067, 1112 (overruled on other grounds); see also McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11 [erroneous rulings, even when numerous and continuous, are not grounds for bias or prejudice; nor are “judges’ expressions of opinion uttered in what he conceives to be the discharge of his judicial duty.”].)  Furthermore, challenges to a court for bias are not properly brought by a motion for reconsideration, but must comply with the procedures set forth in C.C.P. Section 170.3. 

Accordingly, Defendant’s motion for reconsideration is DENIED.