Case Name: Ralph Vaccaro vs Select Portfolio Servicing
Case No.: 17CV319701

Plaintiff Ralph Vaccaro (“Plaintiff”) has filed a motion for reconsideration of the Court’s ruling to sustain demurrer to his complaint without leave to amend. Plaintiff admits that he did not file any opposition to the demurrer and did not appear at the hearing, explaining in his motion that he was expecting Defendant Select Portfolio Servicing to agree to a loan modification. Plaintiff has provided no authority or facts to allow the Court to conclude that he would be able to amend his complaint to state a viable claim, or to support any argument that the demurrer was not properly sustained. By virtue of the demurrer filed by Defendant that challenged Plaintiff’s complaint, it was not reasonable for Plaintiff to expect a settlement and then fail to oppose the demurrer and choose not to appear at the hearing. Moreover, Defendant presented evidence that it could not reach him to discuss his request for a loan modification, and at one point Plaintiff informed Defendant that he could not make the payment that was required by the loan modification discussions.

As noted, Plaintiff did not file any opposition to the demurrers. Plaintiff had the burden to show a reasonable possibility that amendment could cure the defects in the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) As Plaintiff did not respond at all to the demurrer, the Court could not determine how the defects in the complaint could be cured by amendment, and accordingly, leave to amend was denied. Plaintiff’s motion for reconsideration is not only procedurally and substantively defective, Plaintiff provides no basis for the Court to conclude that Plaintiff could cure the defects in the Complaint.

Application for reconsideration

A party applying for reconsideration must 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 of Civ. Proc. §1008(a).) Any motion for reconsideration must be made within ten days after service on the moving party of written notice of entry of the order. (Code of Civ. Proc. §1008(a).) It is not clear if the motion was filed within the required time period.

Strict compliance with section 1008 is required. Code of Civil Procedure section 1008 specifies and limits a court’s jurisdiction with regard to applications for reconsideration of its orders and applies to all applications to reconsider any order of a judge or a court, whether the order is interim or final. (Code of Civ. Proc. §1008(e).) A judge may not consider any application to reconsider a prior order, unless the application is made in accordance with section 1008. (Code of Civ. Proc. §1008(e).)

“According to the plain language of the statute, 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, 1500.) A party seeking reconsideration of an order based upon new or different facts, circumstances, or law must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 212; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689.) 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. (See New York Times, 135 Cal.App.4th at pp. 212-213; (See New York Times, 135 Cal.App.4th at pp. 212-213; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690 [matters raised by plaintiff in his motion for reconsideration consisted of information always within his possession, and he gave no satisfactory explanation for not bringing it out earlier].)

The Supreme Court has rejected a moving party’s contention that on a renewed motion or motion for reconsideration the moving party does not have to present new facts, but only different facts. Numerous decisions have rejected the argument that a party may merely offer anything not previously presented to the court, because this would defeat the legislature’s stated goal of reducing the number of reconsideration motions and would remove an important incentive for parties to efficiently marshal their evidence. (See Even Zohar Constr. & Remodeling, Inc. v Bellaire Townhouses, LLC (2015) 61 Cal.4th 830; California Correctional Peace Officers Ass’n v Virga (2010) 181 Cal.App.4th 30, 44-48 [moving party is responsible for advancing all correct legal theories in its original motion, so as not to burden court with repeated motions for same relief; judge properly denied renewed motion based on a statute that party had failed to cite in its original motion, in absence of sufficient explanation why party had not done so].) The purpose of Section 1008 is “to conserve judicial resources by constraining litigants who would endlessly bring the same motions over and over, or move for reconsideration of every adverse order and then appeal the denial of the motion to reconsider.” (Even Zohra, supra, 61 Cal.4th at 840.)

Plaintiff has provided no declaration at all as required by Section 1008, and has not presented any new facts, law, or circumstances that would support a different result on the demurrer, and has not met his burden on this motion. The Court does not agree with Plaintiff that the prior order was wrong or incorrect in any way, or that Defendant has misled the Court. The motion for reconsideration is DENIED.

The order sustaining the demurrer has been signed. After Defendant has served written notice of entry of the order, Defendant shall submit a judgment of dismissal after compliance with Rules of Court, Rule 3.1312.

The Court will prepare this order.