Judge Virginia Keeny, Case Number: 23STCV11185, Date: 2025-02-28 Tentative Ruling

Judge: Virginia Keeny, Case: 23STCV11185, Date: 2025-02-28 Tentative Ruling

Case Number: 23STCV11185 Hearing Date: February 28, 2025 Dept: 45

JAMILA ELVIRA SALAZAR, ET AL. V. CENTRAL AVENUE VILLAGE SQUARE PRESERVATION, L.P, ET AL.

MOTION FOR RECONSIDERATION

Date of Hearing: February 28, 2025 Trial Date: September 15, 2025

Department: 45 Case No.: 23STCV11185

Complaint Filed: May 18, 2023

Moving Party: Plaintiffs Jamila Elvira Salazar, Nyla Elvira Henson through her Guardian ad Litem Jamila Elvira Salazar, and Jaylen Jimmie Willis

Responding Party: Defendants Central Avenue Village Square Preservation, L.P. and Concerned Citizens of South Central Los Angeles

BACKGROUND

This is a habitability case. Plaintiffs Jamila Elvira Salazar; Nyla Elvira Henson, a minor child by and through her guardian ad litem, Jamila Elvira Salazar; and Jaylen Jimmie Willis (collectively, Plaintiffs) filed this action on May 18, 2023 against defendants Central Avenue Village Square Preservation, L.P. and Concerned Citizens of South Central Los Angeles (collectively, Defendants), alleging causes of action for: (1) Breach of Implied Warranty of Habitability; (2) Tortious Breach of Implied Warranty of Habitability; (3) Negligence; (4) Intentional Infliction of Emotional Distress; (5) Private Nuisance; (6) Violation of Civil Code § 1942.4; (7) Violation of L.A.M.C. § 45.33; and (8) Violation of Business and Professions Code § 17200.

The complaint alleges that Defendants failed to repair and abate the defects at Plaintiffs’ apartment at 1060 E. 53rd Street, Apt. 106, Los Angeles, CA 90011. (Compl. ¶¶ 1,11.) Defendants allegedly failed to do so to save money and increase Defendants’ cash flow and net income. (Compl. ¶ 11.) The alleged defects on the subject property included rodent infestation, widespread water leaks and chronic mold, and physical defects. (Compl. ¶ 11(a)-(c).)

Defendants filed a cross-complaint on September 25, 2023 against Roes 1 through 25, alleging causes of action for (1) Total or Comparative Equitable Indemnity; (2) Contribution; (3) Declaratory Relief; (4) Breach of Contract; and (5) Express Indemnity.

On January 4, 2024, Defendants filed an Amendment to Cross-Complaint, naming Walton Electric as a cross-defendant.

Plaintiffs filed a motion for mandatory trial preference on December 20, 2023. On January 24, 2024, the Court issued a tentative order denying Plaintiffs’ motion; however, at the hearing, the Court ordered the following: “Defendant Walton Electric to submit their brief by February 2, 2024. Counsel Reply/brief is due on or before February 9, 2024. Once the briefs are received by the Court, the matter will be taken under submission.” (Jan. 24, 2024 Minute Order p. 1.)

On January 26, 2024, Defendants dismissed Walton Electric. The same day, Defendants filed an Amendment to Cross-Complaint, naming Waterproofing Expert, Inc. as a Cross-Defendant.

On January 29, 2024, the Court adopted, without a hearing, its tentative ruling issued on January 24, 2024 due to the dismissal of Walton Electric.

On January 30, 2024, Defendants filed a supplemental opposition to Plaintiffs’ motion for trial preference.

Plaintiffs filed a motion for reconsideration of order denying Plaintiffs’ motion for mandatory trial preference on February 13, 2024. Defendants filed an opposition on December 11, 2024. Plaintiffs did not file a reply as of February 25, 2025.

[TENTATIVE] RULING:

Plaintiffs’ Motion for Reconsideration of Order Denying Plaintiffs’ Motion for Mandatory Trial Preference Pursuant to Code of Civil Procedure, Section 36(b) is DENIED.

ANALYSIS

Legal Standard

Code of Civil Procedure section 1008, subd. (a) provides:¿

“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).)

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.¿ (Ibid.)¿¿¿

Moreover, there is a strict requirement of diligence, which means the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier.¿ (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) This diligence requirement extends to motions brought on the basis of “different” law. (Baldwin v. Home Savings of Am. (1997) 59 Cal.App.4th 1192, 1200 [“If a trial court has no jurisdiction to reconsider a prior order on the basis of ‘different facts’ in the absence of a satisfactory explanation for the failure to present them earlier, it cannot have jurisdiction to reconsider on the basis of ‘different law’ absent the same showing of diligence, because there is no basis for any distinction either in the statute or in reason.”].) The burden under Section 1008 is comparable to that of a party seeking a new trial on the grounds of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at trial.¿ (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)¿¿¿

Timeliness

A motion for reconsideration must be made within 10 days after service upon the moving party of written notice of entry of the order. (Code Civ. Proc., § 1008, subd. (a).) Here, the Court denied the motion for mandatory trial preference on January 29, 2025 and served the January 29, 2025 Minute Order by mail on the same day. (Motion p. 7.) According to Code of Civil Procedure section 1013, a party’s deadline to file is extended by five calendar days, making the deadline February 13, 2024. As Plaintiffs filed their motion on February 13, 2024, the motion was filed timely.

Discussion

Plaintiffs move for reconsideration of the Court’s January 29, 2024 Minute Order, denying Plaintiffs’ motion for mandatory trial preference. (Motion p. 1; Decl. Mitcheltree ¶¶ 17, 19.) Motions for reconsideration must be based on new circumstances, facts, or law. Here, Plaintiffs argue three new facts to consider: (1) Defendants dismissed Walter Electric on January 26, 2024 after claiming it to be an essential party; (2) Defendants named a cross-defendant, Waterproofing Experts, Inc. on January 26, 2024; and (3) Defendants filed a supplemental opposition to the motion for mandatory trial preference on January 30, 2024, arguing that they need to depose Nyla Elvira Henson and did not address whether additional essential parties that had not yet been served or appeared in the action. (Motion pp. 2, 9; Decl. Mitcheltree ¶ 19.) Plaintiffs allege these statements are new facts that the Plaintiffs did not know at the time of the January 24, 2024 hearing or January 29, 2024 Minute Order. (Decl. Mitcheltree ¶ 19.)

The Court agrees that these are new facts as all three events occurred after the January 24, 2024 hearing and Minute Order and before the court adopted its tentative on January 29, 2024. In addition, Plaintiffs were not able to bring up these facts before the Court adopted its tentative.

Defendants argue that there are no new facts warranting reconsideration. (Opp. pp. 2-4.) Defendants assert that these new facts would not have altered the Court’s decision, because it does not address whether Plaintiffs complied with Code of Civil Procedure, section 36, subdivision (c)(1). (Opp. pp. 2-4.) Defendants additionally argue that the Court properly denied the motion, because Plaintiffs did not demonstrate whether the minor plaintiff had a substantial interest in warranting trial preference. (Opp. pp. 4-6.)

The court cannot discern why the motion was previously denied. Because the motion for reconsideration was timely and based on new facts, the court finds it appropriate to consider the motion for trial preference anew. The court notes that this case was filed on May 18, 2023 and will not go to trial, as currently scheduled until well after the two year trial target for civil cases. This court can see no reason why trial preference should not be granted at this juncture. The minor child is alleged to have been injured as a result of the uninhabitable conditions. All parties have now appeared in this case and there is no continuing ground to deny the motion. The parties should be prepared to discuss new trial dates at the hearing on February 28.