Mogilefsky v. Costco
Case No: 17CV04422
Hearing Date: Tue Jul 23, 2019 8:30

Nature of Proceedings: Motion for Reconsideration

On May 14, 2019, the court heard oral argument on the merits of defendants’ summary judgment motion. At the hearing, but before oral arguments commenced, plaintiff asked the court for a continuance “to allow him to file a motion to compel answers to his 3rd set of admissions . . . .” The court took the new request and the motion for summary judgment under submission. In a written ”Statement of Decision” signed and entered on May 17, 2019, the court denied plaintiff’s request for a continuance and granted defendants’ motion for summary judgment, among other things. The “Statement of Decision” (the order) was mailed to the parties on May 20, 2019, as evidenced by the clerk’s certificate of mailing. The court thereafter signed and entered judgment on June 3, 2019. Defendants sent notice of entry of judgment to plaintiff by facsimile and mail on June 17, 2019. Plaintiff originally filed a motion for reconsideration on June 19, 2019, scheduled for July 9, 2019, but that matter was taken off calendar at plaintiff’s request. Plaintiff refiled the motion for reconsideration on June 24, 2019. Plaintiff contends the court’s previous grant of summary judgment should be “reversed and summary judgment be denied based on newly discovered law, facts and circumstances.”

Code of Civil Procedure section 1008, subdivision (a) provides that 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 notice of written notice of entry of the order and based upon new or different facts, circumstance or law, make application to the same judge or curt that made the order, to reconsider the matter and modify, amend, or revoke. 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.” (Emphasis added.) This provision “specifies the court’s jurisdiction with regard to applications for reconsideration of orders and . . . .” (Code Civ. Proc., § 1008, subd. (e).) Under this provision, the trial court has no jurisdiction to hear a motion for reconsideration that does not comply with the requirements of the section. (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1278 [“Any application for reconsideration must comply with the provisions of section 1008 in order for the court to consider the request”]; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391 [“[T]he procedural prerequisites set forth for reconsideration of orders and renewal of motions previously denied are jurisdictional as applied to the actions of parties to civil litigation”].)

The court denies the motion for reconsideration. First, it is untimely. The statutory language is pellucid – a party has 10 calendar days from the notice of entry of the order (in this case, the order granting summary judgment) to file a motion for reconsideration. (See, e.g., Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1097 [Code of Civ. Proc., § 1008 prohibits a party from making renewed motions not based on new facts or law].) Formal notice of ruling, issued by this court, was mailed, with notice of mailing, on May 20, 2019. (See, e.g., Forrest v. Department of Corrections (2007) 150 Cal.App.4th 183, 203, disapproved on other grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172; see also Novak v. Fay (2015) 236 Cal.App.4th 329, 335.) A notice of ruling under Code of Civil Procedure under section 1019.5, which allows either the court or the prevailing party ti give notice of the grant of a motion, starts the time running for a motion for reconsideration. (See, e.g., Advanced Building Maintenance v. State Comp. Ins. Fund (1996) 49 cal.App.4th 1388, 1392.) The 10-day deadline for seeking reconsideration is extended under Code of Civil Procedure section 1013 for service by mail, facsimile, electronic service, or overnight delivery. Even giving plaintiff the benefit of the doubt about the mailing (i.e., increased by 5-days for mailing), the motion had to be filed no later June 4, 2019. The motion at its earliest was filed on June 19, 2019, and refiled on June 24, 2019, beyond the 10 days contemplated by the statute.

Second, plaintiff can no longer challenge the summary judgment ruling via a motion for reconsideration at this point even if a motion were timely. Once entry of judgment is made, a party is no longer able to challenge the underlying summary judgment ruling by means of a motion for reconsideration. (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482; Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1237-1238.)[1] The present motion was filed on June 24, 2019, after both entry of judgment and notice of entry of judgment.

For these reasons, the motion for reconsideration is denied.

Pursuant to California Rules of Court, 3.1308 (a)(1) and Santa Barbara County Superior Court Local Rule 1301(b), the court does not require a hearing; oral argument will be permitted only if a party notifies all other parties and the court by 4:00 p.m. (Department 2) the day before the hearing of the party’s intention to appear. This tentative ruling will become the ruling of the court if notice of intent to appear has not been given. If a hearing is requested, it will begin at 11:00 a.m. in Department 2. If no hearing is requested, defendant is directed to provide a proposed order for signature commensurate with this tentative, with appropriate notice to plaintiff, pursuant to California Rules of Court rule 3.1312, which will then be entered by the court.

[1] If a timely motion for reconsideration is pending at the time a judgment is presented for entry, the trial court should not enter that judgment, unless it intends by doing so to impliedly deny the motion for reconsideration. (Safeco, supra, 134 Cal.App.4th at p. 1483.) This rule is not implicated.