Judge: Walter P. Schwarm, Case: 30-2021-01211808, Date: 2023-08-29 Tentative Ruling

Defendants’ (Daniel Scinto) unopposed Motion for Reconsideration, filed on 5-31-23 under ROA No. 233, is DENIED.

Code of Civil Procedure section 1008, subdivision (a) states, “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.”

In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468 (Herr) explains, “Code of Civil Procedure section 1008 requires that a party seeking reconsideration do so ‘within 10 days after service upon the party of written notice of entry of the order. . . .’ [Citation.] A motion for reconsideration must be based on new or different facts, circumstances or law [citation], and facts of which the party seeking reconsideration was aware at the time of the original ruling are not ‘new or different.’ [Citation.] In addition, a party must provide a satisfactory explanation for failing to offer the evidence in the first instance.  [Citation.]” Pinela v. Nieman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237 (Pinela), states, “If 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.” (Code Civ. Proc., § 1008, subd. (c).) Even without a change of law, a trial court may exercise its inherent jurisdiction to reconsider an interim ruling. [Citation.]” (Footnote 5 omitted.)

The Motion requests the court to reconsider its 5-17-23 Minute Order denying Defendants’ (Architectronix, Inc. and John Rix) Ex-Parte Application for an Order Shortening Time for Hearing on Motion to Enforce Prior Court Order Regarding Arbitration (Ex Parte Application).  (Motion; 4:14-18.)  The Ex Parte Application was filed on 5-16-23 under ROA No. 221.)  The Motion appears to request the court to amend the 5-17-23 Minute Order by adding statement made by the court that are not in the 5-17-23 Minute Order.  The Motion states, “In his declaration, Scinto states that Judge Schwarm also stated that some of the above-cited statement would be reflected in the minutes. Unfortunately, most of Judge Schwarm's comments are not reflected in the minutes. That is a critical omission, one which completely hollows out the progress that had initially been accomplished in the hearing.” (Motion; 4:15-18.)

The Motion does not provide any new or different facts, circumstance, or law.  Since there was no court reporter at the hearing on 5-17-23, the court does not have an evidentiary basis for amending the 5-17-23 Minute Order. (5-17-23 Minute Order.)  Further, this Motion is MOOT because the court rule on Defendants’ Motion to Enforce Prior Court Order Regarding Arbitration (Motion), filed on 5-16-23 under ROA No. 220, on 8-1-23. (8-1-23 Minute Order.)

Based on the above, the court DENIES Defendants’ (Daniel Scinto) unopposed Motion for Reconsideration filed on 5-31-23 under ROA No. 233.

Court Clerk is to give notice.