Judge: Yolanda Orozco, Case: 21STCV16669, Date: 2022-10-06 Tentative Ruling

Case Number: 21STCV16669    Hearing Date: October 6, 2022    Dept: 31

MOTION TO RECONSIDER OR TO SET ASIDE/VACATE DISMISSAL IS DENIED 

Background 

On April 30, 2021, Plaintiff and self represented litigant, Briand Williams, as an individual and class representative filed a Complaint against the Los Angeles County Sheriff’s Department; County of Los Angeles, Los Angeles County Sherriff’s Department of Medical Services; Integrated Correctional Health Services; Correctional Health Services Department of Health Services Los Angeles County, Health Information Management, John Does and Jane Does Medical Practitioners, and Does 1 to 200. The Complaint alleges negligence and violations of the Ralph Act.

On August 30, 2021, the Court convened the Case Management Conference. Plaintiff failed to appear, and no proofs of service or the CMC statement had been then filed.  The Court set an Order to Show Cause Hearing as to why the Complaint should not be dismissed for failure to appear and to prosecute this case.  The OSC hearing was set on September 23, 2021.

Plaintiff again failed to appear at the OSC hearing on September 23, 2021and the Court therefore dismissed the Complaint. (Min. Or. 09/23/21.)

On September 1, 2022, Plaintiff  Motion to Set Aside/Vacate the Dismissal was denied by the Court due to lack of jurisdiction under Code of Civil Procedure section 473.

On September 12, 2022, Plaintiff filed a Motion for Reconsideration of that Order. 

Legal Standard 

The moving party must present new facts, circumstances or law in order to be granted a motion for reconsideration.  (See CCP § 1008(a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) A motion pursuant to CCP § 1008 must be made "within 10 days after service upon the party of written notice of entry of the order."  (Code Civ. Proc., § 1008(a).)

“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. Pro. § 1008(a).)  

Discussion 

On September 1, 2022, Plaintiff’s motion to set aside/vacate the dismissal of Plaintiff’s Complaint under California Code of Civil Procedure 473 was denied. This Court found that the jurisdictional time limit for filing the motion under Section 473 had passed since the motion was not made within a reasonable time and more than six months had passed from the date of the Order dismissing the complaint. According, the Court found that it had no authority to consider the late-filed motion. 

A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) Plaintiff asserts that he was not able to file the motion to set aside/vacate the dismissal by the March 22, 2022 deadline line due to suffering a transient ischemic stroke and a traumatic head injury. For this reason, Plaintiff made the reservation 13 days later on April 4, 2022. 

Plaintiff cites, Lewis v. Superior Court (1985) 175 Cal.App.3d 366, for the proposition that due to his injuries tolling should be applied to his motion to set aside/vacate the dismissal of his complaint. However, Lewis stands for the proposition that the statute of limitations can be tolled for a cause of action when the attorney who is a solo practitioner is incapacitated and is unable to file the Complaint within the statute of limitations period. Lewis does not apply to a tolling of the six-month jurisdictional limitations contained in Code of Civil Procedure section 473. 

No authority has been presented establishing that the Court has authority to waive the jurisdictional requirements under Section 473 when the Plaintiff has suffered an injury or illness, or that such ailments can constitute “new or different facts” such as to warrant the grant of a motion for consideration. In fact, Section 1008 contemplates that the “new and different facts” must related to the facts in the motion at hand, not the personal circumstances of the Plaintiff. For this reason, the Court has no discretion but to deny Plaintiff’s Motion for reconsideration.   

Conclusion 

Plaintiff’s Motion for Reconsideration to Set Aside/Vacate Dismissal of the Complaint is DENIED. 

Clerk to give notice.