Judge: William D. Claster, Case: 22-01239759, Date: 2023-08-11 Tentative Ruling

1. Plaintiff Mark Moon, Robert Ruiz, Gary Figueroa, Jonathan Tieu, Johnny Martinez, Julio Dorantes, Walter Cole, Ronald McGregor, and Stephen Bartol's Notice of Motion and Motion For Reconsideration (ROA #354)

2. Status Conference

Plaintiffs’ motion for reconsideration is DENIED.

I.            Scope of Motion

Plaintiffs’ notice of motion seeks “reconsideration of the Court’s order dated June 23, 2023.” But the June 23 order ruled on two motions: (1) Plaintiffs’ motion for CCP § 473 relief from the prior denial of their motion for leave to file a Third Amended Complaint (3AC), and (2) the County Defendants’ demurrer to Plaintiffs’ 2AC. The Court denied the § 473 motion and largely sustained the demurrer without leave to amend. (A single claim for battery remains.)

The proposed order filed with the moving papers refers to “[t]he motion of Plaintiffs for an order requesting reconsideration from the Court’s order of June 23, 2023 and that this Court permit the filing of Plaintiff’s Third Amended Complaint.” It concludes by saying, “Plaintiff’s relief is granted [sic] and given leave to file their Third Amended Complaint.” The declaration of Richard Herman supporting the motion refers only to the prior CCP § 473 motion and says “a new complaint will be presented before the hearing date.” (Herman Decl. ¶ 3.) And the motion itself discusses only reasons for allowing filing of a 3AC, not the demurrer to the 2AC.

Based on Plaintiffs’ moving papers, the Court finds Plaintiffs only seek reconsideration of the order on the § 473 motion. The order on the demurrer to the 2AC is not at issue.

II.          Merits of Motion

A motion for reconsideration may be made within 10 days of service of notice of entry of an order “based upon new or different facts, circumstances, or law.” (CCP § 1008(a).) The County Defendants served notice of the June 23 order on June 26. (ROA 351.) Plaintiffs’ motion was served on July 3. It is timely.

A.           New Facts

Plaintiffs argue “new facts permit amendments” (Mot. at p. 3), but the papers are devoid of specifics. Plaintiffs refer to the claims of Nellie Garibay, who is apparently a plaintiff in another jail-related lawsuit in federal court. These are not new facts. Plaintiffs admit Garibay’s federal case has been around long enough to reach the summary judgment stage, and they discuss their counsel Herman’s participation in the summary judgment hearing. Plaintiffs, through their counsel, have long known of the facts associated with Garibay’s claims. Plaintiffs also reference the unchanged culture of the Los Angeles and Orange County jails going back to 1976, which is hardly new (assuming for the sake of argument Plaintiffs’ characterization is accurate).

The closest Plaintiffs come to a new fact is Herman’s statement that “[t]he jail is now seriously overcrowded, creating new claims addressable in this class action.” (Herman Decl. ¶ 7.) But Plaintiffs put on no evidence that the current state of alleged overcrowding is worse than before. Indeed, Plaintiffs’ 2AC expressly alleges County jails are over capacity. (2AC at pp. 5-6.) Furthermore, Herman never explains how he has foundation to testify to alleged overcrowding in the jail, so his testimony is inadmissible.

B.           New Law

As to new law, Plaintiffs’ motion cites only two cases. Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766 was decided in 2017. It is not new law, nor could it possibly be construed as such. Leon v. County of Riverside (2023) 530 P.3d 1093 was decided on June 22, 2023, the day before the last hearing. Technically, Leon is not new law: it was a California Supreme Court decision on the books when the Court issued the June 23 ruling. Herman did not appear at the June 23 hearing. He could have appeared and brought Leon to the Court’s attention.

Assuming Herman’s failure to appear at the June 23 hearing did not waive any arguments related to Leon, that case is inapposite. In Leon, the decedent was murdered in his driveway. The decedent’s wife sued Riverside County for emotional distress based on sheriff’s deputies’ handling of his corpse. Riverside County argued it was immune from suit under Gov. Code § 821.6, which immunizes public employees from liability “for injury caused by [their] instituting or prosecuting any judicial or administrative proceeding within the scope of [their] employment.” Riverside County argued the alleged mishandling of the corpse took place during the performance of the deputies’ official duties, so § 821.6 applied. The California Supreme Court disagreed, holding the statute covers “claims of injury based on tortious or wrongful prosecution.” (Leon, supra, 530 P.3d at p. 1100.) The widow’s emotional distress claim, based on conduct during an investigation, could go forward.

Leon does not stand for the proposition Plaintiffs assert: that “California Government Immunity Tort Law” is “[n]ow to be narrowly interpreted” such that “[a]ll named Plaintiffs and the Class now have damage and injunctive claims for emotional distress.” (Mot. at p. 4.) The California Supreme Court examined only the scope of Gov. Code § 821.6, which has never been at issue in this case.

C.            New Circumstances

Plaintiffs identify no new circumstances justifying reconsideration. They contend the Court was wrong about whether CCP § 473 relief was mandatory or discretionary, but “the Court was wrong” is not a statutory ground for reconsideration.

III.       Procedural Issues

At issue here is the Court’s prior denial of the § 473 motion. As discussed in the June 23 order, while Plaintiffs argued § 473 relief was justified on grounds of attorney fault, they never discussed the other basis for the Court’s original ruling denying them leave to amend: failure to comply with CRC 3.1324. That failure continues here. Plaintiffs have yet to address that question. Even if new facts, law, or circumstances might counsel in favor of permitting amendment, Plaintiffs remain out of compliance with CRC 3.1324, which is an independent ground for denying leave to amend and denying the § 473 motion, and thus for denying reconsideration.

Furthermore, at this point, the Court does not know what 3AC Plaintiffs seek to file. Plaintiffs’ original motion for leave to file a 3AC referred to a proposed 3AC they had tried to file without leave of the Court. The parties and the Court were clear about the proposed pleading in question. Now, Herman states, “A new complaint will be presented before the hearing date.” (Herman Decl. ¶ 3.) This means the prior proposed 3AC is not the 3AC Plaintiffs now intend to file. As of the due date for Plaintiffs’ reply on this motion, Plaintiffs have not filed their proposed 3AC. The Court cannot reconsider its prior order and permit the filing of a 3AC when it has no idea what Plaintiffs propose to file.