Case Name: Professional Collection Consultants v. Krystal Lauron
Case No.: 2011-1-CV-213127

This is a credit card collection action arising from written cardmember agreements governed by Delaware law. The action has returned to the superior court following a decision by the Court of Appeal (Prof. Collection Consultants v. Lauron (2017) 8 Cal.App.4th 958) which reversed a 2015 judgment in favor of Defendant/Cross-Complainant Krystal Lauron (“Lauron”) issued after the Superior Court (Hon. Huber) granted in part and denied in part Lauron’s motion for summary judgment (“MSJ”) on July 9, 2015. Currently before the Court are three MSJs. One by Plaintiff Professional Collection Consultants (“PCC”) in its capacity as Plaintiff, another by PCC and the other cross-complainants directed at Lauron’s operative First Amended Cross-Complaint (“FACC”) and a third by Lauron. These motions were continued by the Court to this date so that the parties could present supplemental briefing on the application of Code of Civil Procedure (“CCP”) § 1008(b) to these motions, all of which essentially duplicate motions ruled on in February and July 2015.

CCP §1008(b) states that “A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” (Emphasis added).

CCP §1008(e) further states that “This section specifies the court’s jurisdiction with regard to applications for reconsiderations of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” (Emphasis added.)

Having considered the parties’ supplemental briefing the Court finds that the parties have not satisfied the jurisdictional requirements set forth in CCP § 1008 to allow their renewed motions (all three of which in all essential respects duplicate their 2015 motions) to be heard and all three MSJs (as well as the related motion to seal filed by PCC and the cross-defendants and the requests for judicial notice by both sides) are DENIED on that basis.

As an initial matter the Court notes that the parties have failed to submit the affidavits/declarations required by CCP § 1008(b) setting forth what “new or different facts, circumstances or law are claimed to be shown.” Nor do any of the declarations filed with the renewed MSJs meet this criteria. While the parties’ supplemental briefing offers some argument on why the parties believe CCP § 1008(b) does not apply, these arguments are not persuasive.

In February 2015 PCC and the individual cross-defendants brought three motions: for summary judgment/adjudication with one notice of motion and memorandum of points and authorities but three separate statements. The first motion, by PCC only, was for summary judgment on its complaint against Lauron; the second, by PCC and the individual cross-defendants, was directed at Lauron’s operative FACC and the third, by PCC as plaintiff and cross-defendant and by the individual cross-defendants, sought summary adjudication of five issues. All three motions were denied in their entirety by Judge Huber in a February 20, 2015 Order. No motion for reconsideration of that Feb. 20, 2015 order was filed and no appeal was taken.

The Court (Hon. Huber) ruled on Lauron’s MSJs on July 9, 2015. The order granted Lauron’s MSJ as to PCC’s Complaint on the basis that the Delaware statute of limitations gave her a complete defense, granted in part and denied in part Lauron’s MSJ on her FACC (granting judgment as to PCC but denying it as to the other cross-defendants) and denied the motion to bifurcate issues for trial by PCC and the individual cross-defendants. The motion to bifurcate was the only motion by PCC and the cross-defendants brought at that time and addressed in the July 9, 2015 order. Judgement in favor of Lauron against PCC (as Plaintiff and Cross-Defendant) but not the other cross-defendants was entered on July 23, 2015. This Judgment was the basis for the August 7, 2015 Notice of Appeal by PCC only, with PCC indicating on the judicial council form stating that the appeal was from “Judgment after an order granting a summary judgment motion.” The Sixth District’s decision makes clear that it only heard PCC’s appeal of the judgment entered in Lauron’s favor based on the grant of summary judgment to Lauron on PCC’s complaint and her cross-complaint (as directed against PCC only). There is no language in the decision suggesting that the Court of Appeal was also considering the Feb. 20, 2015 order, and its instructions to the superior court were only to vacate the July 9, 2015 order granting summary judgment to Lauron and to enter a new order denying Lauron’s MSJ in its entirety.

In their supplemental briefing both parties focus on the fact that Judge Huber’s July 9, 2015 order was reversed by the court of appeal and argue that this somehow self-evidently makes § 1008(b) inapplicable. This is clearly incorrect (and would not help PCC justify its current motions in any event) because § 1008(b) by its plain terms focuses on whether a later motion seeks the same relief as a prior motion, not on whether the order on the prior motion is still in place. (See California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 43 [In determining whether a new motion is a renewal of a previous motion within meaning of the statute limiting courts’ authority to consider such motions, the nature of a motion is determined by the nature of the relief sought, not by the label attached to it; the law is not a mere game of words].) All three present motions clearly seek the same relief for each side that was sought in the 2015 motions and on the same basis. The parties’ various arguments in the current motions regarding the application of California law versus Delaware law, the proper interpretation of statutes of limitations, or whether individual cross-defendants were sufficiently involved in PCC’s operations to be liable under Lauron’s cross-claims cannot quality as “new or different” facts or circumstances as identical arguments (or some close variation) were made in the earlier motions ruled on in February and July 2015.

The Sixth District’s decision reversing the July 9, 2015 summary judgment also does not constitute “new law.” The Court of Appeal generally agreed with Judge Huber’s July 9, 2015 legal conclusions that PCC’s claims arose from a breach of written cardmember agreements governed by Delaware law regardless of their title and his conclusions regarding the application and interpretation of the Delaware statute of limitations. It overturned the summary judgment awarded to Lauron not on the basis of any new legal theory, but on the basis that she had failed to establish an essential element of her statute of limitations affirmative defense—when the limitations period on her breach of the cardmember agreement began running. This was not “new law.” Since establishing the date of the breach is something Lauron could have addressed in 2015, any evidence she now presents to establish a date for her breach of the cardmember agreement cannot be “new or different facts.” A renewed motion is subject to the same “reasonable diligence” requirement as a motion for reconsideration. (See California Correctional Peace Officers Ass’n, supra, at 46, fn. 14 & 15.) As Lauron could have submitted evidence establishing when the limitations period she was relying on for her affirmative defense began running with her 2015 MSJ, her current motion also cannot satisfy the “reasonable diligence” standard.

Finally the suggestion by PCC that the Court, by approving the stipulation of the parties as to scheduling of the current motions and the parties’ use of stipulated facts, somehow waived the application of CCP § 1008(b), is wholly unpersuasive. As CCP § 1008(e) makes clear, the statute places a jurisdictional restriction on the Court’s ability to hear renewed motions, which all three present MSJs clearly are. This restriction cannot be waived by the parties or the Court.