Judge: William A. Crowfoot, Case: 20STCV09367, Date: 2022-10-05 Tentative Ruling

Case Number: 20STCV09367    Hearing Date: October 5, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On March 6, 2020, Plaintiff Maria Lopez and Johnathan Velasquez (“Plaintiffs”) filed this action against Defendant Raymond Woody (“Defendant”) for damages arising from a motor vehicle accident.  On September 3, 2021, this matter was called for trial, but after there were no appearances by or for either side, Plaintiffs’ complaint was dismissed without prejudice. 

On March 7, 2022, Plaintiffs filed a motion to set aside dismissal contending the failure to appear for trial was the result of Plaintiffs’ counsel’s mistake, neglect, inadvertence and surprise.  The Court denied this motion on May 24, 2022, as untimely.  

On June 3, 2022, Plaintiffs filed this motion for reconsideration of the Court’s order on May 24, 2022 (the “May 24 Order”).  Plaintiffs argue that they attempted to file the motion on March 4, 2022, but the motion was marked as filed on March 7, 2022, because the Court’s e-filing website was unavailable due to scheduled maintenance.  The Court issued a tentative ruling on August 2, 2022 denying this motion because there was no evidence supporting Plaintiff’s assertion that the Court’s website was unavailable.  After the Court and Plaintiff’s counsel conferred, the Court continued the hearing to October 5, 2022. 

On September 9, 2022, Plaintiff’s counsel submitted a declaration. 

II.          LEGAL STANDARD

CCP section 1008(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.

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.) 

III.        DISCUSSION

Plaintiffs argue that the Court should reconsider its earlier ruling which denied their motion to set aside the order of dismissal as untimely.  Plaintiffs claim that their counsel’s office had filed the motion on March 4, 2022, but that the Court’s website was “out of order on that date, and thus the motion was filed or received by the court on March 7, 2022.”  (Motion, 6:12-14.)  Plaintiffs’ counsel declares his office had additionally tried to fax file the motion on March 4, 2022, which was also unsuccessful. 

On September 9, 2022, Plaintiffs’ counsel, Fred Hanassab, submitted a declaration attaching a copy of a document he refers to as the “One Legal Incident History.”  The document reflects that the Los Angeles County Superior Court had scheduled maintenance from 5 p.m. on March 4, 2022 through 1:00 p.m. on March 6, 2022.  (Hanassab Decl., Ex. 1.)  The declaration also attaches a document purportedly reflecting that the motion was accepted on March 6, 2022 at 4:00 p.m.  (Hanassab Decl., Ex. 3.)  Another document dated March 4, 2022 suggests there were efforts to fax file the motion to set aside at 6:47 p.m., even though fax filing not allowed.  (Hanassab Decl., Ex. 2; see LASC Local Rule 3.4 [mandating electronic filing unless otherwise exempted].) 

Mr. Hanassab’s declaration is insufficient to authenticate the attached documents.  Mr. Hanassab also fails to demonstrate that he has personal knowledge of when the motion was submitted for e-filing and when the e-filing was processed by OneLegal.  He only declares that his “office” attempted to e-file the motion through One Legal.  The declaration is insufficient to show that the motion to set aside was timely filed on March 4, 2022. 

The declaration is also insufficient because Plaintiffs fail to show how it constitutes “new or different facts, circumstances, or law”, as required in a motion for reconsideration.  (Code. Civ. Proc., § 1008, subd. (a).)  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.)   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.)  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 trial.  (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)    

IV.         CONCLUSION

Accordingly, Plaintiffs’ motion for reconsideration is DENIED.  

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that 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 matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.