Judge Mark E. Windham, Case Number: 19STCV11064, Date: 2023-04-26 Tentative Ruling

If you desire to submit on the tentative ruling, you may do so by e-mailing Dept. 26 at the Spring Street Courthouse until the morning of the motion hearing.

The e-mail address is SSCdept26@lacourt.org

The heading on your e-mail should contain the case name, number, hearing date, and that you submit. The message should indicate your name, contact information, and the party you represent. Please note, the above e-mail address is to inform the court of your submission on the tentative ruling. All other inquiries will not receive a response.

If there are no appearances by either side and no submission on the Court's tentative ruling, the matter will be placed OFF CALENDAR.

Due to overcrowding concerns of COVID-19, all parties shall make every effort to schedule a remote appearance via LACourtConnect (https://my.lacourt.org/laccwelcome) for their next hearing. The parties shall register with LACourtConnect at least 2 hours prior to their scheduled hearing time.

Defendant Norman Lee Shertell’s Motion to Reconsider Ruling on Demurrer to First Amended Answer is DENIED.

Plaintiff Lloyd Byers (“Plaintiff”) filed the instant action for breach of contract, conversion, trespass to chattles, fraud, infliction of emotional distress, and related claims against Defendant Norman Lee Shertell aka Norm Shertell (“Defendant”) on April 2, 2019. Defendant filed an Answer to the Complaint on September 24, 2019. On December 1, 2021, the Court denied Defendant’s Motion to Reclassify this action to a court of limited jurisdiction. (Minute Order, 12/01/21.) Upon reconsideration, however, the Motion to Reclassify was granted on February 14, 2022. (Minute Order, 02/14/22.)

Plaintiff filed a Motion for Judgment on the Pleadings with respect to the Answer, which the Court granted with leave to amend on January 4, 2023. Defendant filed an Amended Answer on January 11, 2023. Plaintiff filed a Demurrer to the First Amended Answer, which the Court sustained without leave to amend on March 15, 2023 after hearing oral argument. (Minute Order, 03/15/23.)

Defendant filed the instant Motion to Reconsider Ruling on Demurrer on March 22, 2023. On April 3, 2023, the Court granted Defendant’s ex parte application to advance the hearing date. (Minute Order, 04/03/23.) Defendant gave notice of the ruling on April 7, 2023. (Notice of Ruling, filed 04/19/23.) No opposition has been filed to date.

The Motion is first brought pursuant to Code of Civil Procedure, section 473, subdivision (b). Under this statute, an application for relief must be made no more than six months after entry of the order from which relief is sought and must be accompanied by an affidavit of fault attesting to the moving party’s mistake, inadvertence, surprise or neglect. (Code Civ. Proc., § 473, subd. (b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

The Motion was timely brought less than six months pursuant to the mandatory provision for relief. (Motion, p. 2:9-12.) The provision for mandatory relief, however, does not apply to a ruling on a contested demurrer. The statute expressly states that the Court must grant relief pursuant to an attorney affidavit of fault from “any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal . . . .” (Code Civ. Proc., § 473, subd. (b).) This has been interpreted to include dismissals following a ruling sustaining a demurrer where the attorney failed to appear. (See Pagnini v. Union Bank, N.A. (2018) 28 Cal.App.5th 298, 303.) In other words, “[c]ourts have limited the application of the mandatory provision to those dismissals procedurally equivalent to defaults.” (Ibid.) Here, Defendant had every opportunity to oppose the Demurrer to the First Amended Answer, such that the mandatory provision of Code of Civil Procedure section 473, subdivision (b) cannot provide a basis for relief.

Even if the Motion was alternatively brought pursuant to the discretionary provision of Code of Civil Procedure section 473, subdivision (b), Defendant has not shown that the requirements are met. The Motion does not explain how the failure to properly amend the Answer was the result of mistake, inadvertence, surprise or excusable neglect, each of which is defined by case law. In fact, the Motion provides no legal authority regarding any of these types of fault, nor any analysis of defense counsel’s error in light of such authority. The supporting declaration of defense counsel states that they are confused that the First Amended Answer was found to be defective by the Court. (Motion, Mokhtarzadeh Decl., ¶5.) They go on to declare that they prepared the First Amended Answer consistent with their experience and training and that their failure to include any additional information was due to not understanding the Court’s ruling. (Id. at ¶¶5-6.) Neither the Motion nor supporting declaration, however, address the standard for a well-pled answer, which was articulated by the Court in its January 4, 2023 ruling. (See Minute Order, 01/04/23.) The Court reiterates: “the same pleading of ‘ultimate facts’ rather than evidentiary matter or legal conclusions is required as when pleading the Complaint. (FPI Development, Inc. v. Nakashimi (1991) 231 Cal.App.3d 367, 384.) In other words, the Answer must aver facts as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the Complaint. (Ibid.)” (Minute Order, 01/04/23, p. 3.)

Ultimate facts are those facts that support the core elements of a claim, or in this case, a defense. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) The Rutter Guide provides an example of the distinction between legal conclusions and ultimate facts: alleging “defendant drove while under the influence of alcohol” is an ultimate fact in support of a personal injury case, while alleging “defendant drove in violation of California drunk driving law” is a legal conclusion. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶6:124.) Neither Defendant’s opposition to the demurrer nor the instant Motion discuss what ultimate facts are alleged in the First Amended Answer, with citation to those ultimate facts, that meet the necessary pleading standard. Nor does the instant Motion explain why the failure to include these ultimate facts amounts to mistake, inadvertence, surprise or excusable neglect.

Therefore, Defendant has not shown that relief is warranted under Code of Civil Procedure section 473, subdivision (b).

Defendant alternatively moves pursuant to Code of Civil Procedure section 1008 for reconsideration of the ruling on the Demurrer to the First Amended Answer. However, the Motion does not show compliance with the statutory requirements. Code of Civil Procedure section 1008, subdivision (a) states in relevant part:

“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).) The motion must be supported by declaration of what new or different facts, circumstances or law are claimed to exist. (Code Civ. Proc., § 1008, subd. (a).) The Court lacks jurisdiction to reconsider a prior ruling, on motion of a party, where the motion does not comply with these requirements. (Code Civ. Proc., § 1008, subd. (e); Le Francois v. Goel (2005) 35 Cal.4th 1094, 1106.) The purpose of this jurisdictional bar is to protect the Court from repetitive motions. (Ibid.) Also, the statute requires the moving party “to show a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence” the purpose of which is to incentivize parties “to efficiently marshall their evidence.” (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1199 [citing Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690].)

Here, Defendant offers no new facts, law, or circumstances and instead argues that their attorney did not understand what was required by the Court’s ruling on March 15, 2023. (Motion, Mokhtarzadeh Decl., ¶¶4-6.) This is not a permissible ground for reconsideration.

Defendant Norman Lee Shertell’s Motion to Reconsider Ruling on Demurrer to First Amended Answer is DENIED.