Case Number: BC521581 Hearing Date: May 14, 2014 Dept: 322

****COURT’S TENTATIVE RULING ON PLAINTIFFS’ MOTION TO VACATE JUDGMENT***

On February 28, 2014, this Court entered an order sustaining the City of Los Angeles’ (“the City”) demurrer to Plaintiffs’ First Amended Complaint without leave to amend, and the City submitted a proposed judgment of dismissal on March 4, 2014. On March 14, 2014, Plaintiffs filed a motion for reconsideration of the Court’s order sustaining demurrer without leave to amend. On March 26, the Court signed the City’s proposed judgment and entered a judgment of dismissal against Plaintiffs.

“It is well settled that entry of judgment divests the trial court of authority to rule on a motion for reconsideration.” (Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477.) Plaintiff urges the Court to vacate the judgment of dismissal so that the Court may reassert jurisdiction over the matter and adjudicate Plaintiffs’ motion for reconsideration. The City notes that entry of judgment while a motion for reconsideration is pending generally constitutes an implicit denial of the motion for reconsideration. (Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1238). However, to the extent that the Court did not intend to deny the motion for reconsideration by implication, the City does not oppose the motion to vacate.

The Court did not intend the March 26, 2014 judgment of dismissal to act as a statement on the merits of the motion for reconsideration, implicitly or otherwise. Rather, the Court, through inadvertence, was unaware of the pending motion for reconsideration at the time it signed the proposed order of judgment. The Court “should not have signed the order of dismissal while the motion for reconsideration was pending.” (APRI Ins. Co. S.A. v. Superior Court (1999) 76 Cal.App.4th 176, 182.) Because the “judgment was entered ‘through the inadvertence or improvidence of the trial court, it ha[s] the power independent of statute, to correct the mistake by amending or setting aside the judgment … .’” (Wong v. Regents of University of California (1971) 15 Cal.App.3d 823, 828 fn.1 [quoting Phillips v. Trusheim (1945) 25 Cal.2d 913, 916]; see also Code Civ. Proc. §473) The Court having entered judgment while inadvertently unaware of the pending motion for reconsideration, the Court finds that judgment was improvidently entered and the judgment of dismissal entered March 26, 2014 is hereby VACATED.

With judgment vacated and jurisdiction once again vested in the Court, the Court separately considers Plaintiffs’ motion for reconsideration.

***COURT’S TENTATIVE RULING ON MOTION FOR RECONSIDERATION***

Plaintiffs move for reconsideration of the Court’s February 28, 2014 order sustaining the City of Los Angeles’ (“the City”) demurrer to Plaintiffs’ First Amended Complaint (“FAC”) without leave to amend. In a 34-page brief,[1] Plaintiffs essentially re-argue their opposition to demurrer, offering a lengthy analysis of why their arguments in opposition to demurrer (and in support of leave to amend) should have prevailed. Because the improperly long motion fails to meet the basic requirements for reconsideration set forth in Code of Civil Procedure section 1008, the motion for reconsideration is DENIED.

I. The Motion is Procedurally Improper

The Court begins by noting Plaintiffs’ 34-pages of argument more than double the 15-page limitation for a motion. (Cal. R. Ct., Rule 3.1110(d).) Plaintiffs did not seek or obtain leave to file an overlong motion. (Cal. R. Ct., Rule 3.1110(e).) Nor does the lengthy motion contain the required table of contents or table of authorities to facilitate the Court’s review of the thicket of arguments set forth in excessive brief. (Cal. R. Ct., Rule 3.1110(f).) Although the Court exercises its discretion to consider the improper briefing (Cal. R. Ct., Rule 3.1110(g); (Cal. R. Ct., Rule 3.1300(d)), Counsel is admonished the Court will not consider (in this action or in any of the related actions for which Plaintiffs’ counsel is counsel of record) any further motion that exceeds the important page limits set forth in the rules of court without first obtaining leave of Court. (Cal. R. Ct., Rule 3.1110(g); (Cal. R. Ct., Rule 3.1300(d).)

II. Plaintiffs Fail to Identify any New or Different Law or Fact

A motion to “reconsider [a] matter and modify, amend, or revoke [a] prior order” pursuant to Code of Civil Procedure section 1008 must be “based upon new or different facts, circumstances, or law” not presented to the Court on the original application or motion. (Code Civ. Proc. §1008(a).) Secton “1008 limit[s] the court’s power (or jurisdiction) to reconsider motions by the parties.” (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) “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.)

This rule is grounded in the notion that “in almost all instances, the losing party will believe that the trial court’s ‘different’ interpretation of the law or facts was erroneous … . (Gilberd v. AC Transit, supra, 32 Cal.App.4th at 1500.) But, “the clear legislative intent [of section 1008 is] to restrict motions to reconsider to circumstances where a party offers the court some fact or authority that was not previously considered by it.” (Gilberd v. AC Transit, supra, 32 Cal.App.4th at 1500.) A party’s belief that the trial court’s order “was based on multiple errors of law and a failure or refusal to consider the evidence presented” may offer grounds for appellate review, but not for reconsideration. (Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 724 [disapproved on unrelated grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 fn.7].)

Because the rules governing reconsideration are designed to ensure some measure of finality to court rulings, it is not enough for the party seeking reconsideration to identify some fact or point of law that the Court did not previously consider. “[T]he party seeking reconsideration must provide not only new evidence [or law] but also a satisfactory explanation for the failure to produce that evidence [or law] at an earlier time.” (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198 [emphasis in original]; see also People v. Keil (2008) 161 Cal.app.4th 34, 39 [reconsideration properly denied where motion based on issues that could have been, but were not, offered in support of the original motion].)

Plaintiffs do not identify a single fact or authority arising after the Court’s February 28, 2014 order sustaining demurrer. Rather Plaintiffs seek reconsideration based on a handful of authorities that they did not cite in opposition to the motion for reconsideration along with most of the authorities already briefed in opposition to the demurrer.[2] But Plaintiffs do not even attempt to explain why they could not, with reasonable diligence, have proffered those authorities in their initial opposition or at the lengthy hearing on the motion and the Court finds none.

“Public policy requires that pressure be brought upon litigants to use great care in preparing cases … .” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 472 [quoting (Rest., Judgments, § 126, com. a].) Our adversarial system demands that litigants make their cases as vigorously and thoroughly as they are able in the first instance. Section 1008 does not afford litigants a do-over, and reconsideration will not lie where, as here, the issues presented on reconsideration “figured prominently in the briefs and at the hearing on the” original motion. (McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1266.)

This rule is all the more salient where, as here, a plaintiff seeks reconsideration of an order denying leave to amend. A plaintiff seeking leave to amend after the trial court sustains demurrer must “proffer a proposed amendment … that will cure the defect or otherwise state a claim … .” (Westamerica Bank v. City of Berkeley (2011) 201 Cal.App.4th 598, 614.) Plaintiff had ample opportunity to proposed amendments in opposition or at the time of the hearing, but failed to propose any amendment that would lead to a different result. Reconsideration cannot offer Plaintiffs an extended opportunity to do what they were obligated to do at the time of the original demurrer. Reconsideration give parties the chance to revisit an issue because circumstances have fundamentally changed, not because a party suddenly thinks of something he or she should have said in the first place.

In any event, the Court notes that Plaintiffs’ late-offered amendments would not alter the outcome with respect to leave to amend. The allegations Plaintiffs propose to add are, in reality, 15 pages of legal argument, not new factual allegations. (Mtn., pp. 6-21.) And as the Court has already noted, even those legal arguments are not “new” as they largely restate Plaintiffs’ opposition to demurrer. The Court was not persuaded by Plaintiffs’ arguments in opposition, and incorporating those legal conclusions into the body of the complaint would not make them any more availing.[3]

IV. Conclusion

In light of the foregoing, the motion for reconsideration is DENIED. In light of the Court’s simultaneous order vacating the judgment of dismissal to permit adjudication of this motion, which was already pending at the time the Court entered judgment, the City is directed to prepare a new judgment of dismissal for the Court’s consideration.

FOOTNOTES:

[1] Plaintiffs’ motion consists of a 16-page “Summary of Motion and Grounds” purporting to propose “amendments” to their FAC that would largely incorporate their opposition brief into the text of their complaint, a three-page “Memorandum of Points and Authorities,” and a 15-page “declaration” by Plaintiffs’ counsel offering arguments of law rather than declarations of fact.

[2] The vast majority of authorities and legal arguments offered in the motion for reconsideration were already offered in opposition demurrer. And while Plaintiffs identify numerous “facts” that they contend are “new” (see Mtn., pp. 6-21; Reply, pp. 3-4), each of those facts (most of which are not facts at all, but legal conclusions) were already argued in the original demurrer. Reconsideration is inappropriate where the moving party “d[oes] not present any facts or authorities relating to the merits of the underlying motion that were not considered by the trial court when it issued its initial orders.” (Gilberd v. AC Transit, supra, 32 Cal.App.4th at 1500.)

[3] The only proposed allegations that were not expressly addressed on demurrer concern Los Angeles City Charter section 461, which proves that “[a]ny referendary petition shall comply with the provisions of the Charter and the City Election Code.” (Los Angeles City Charter §461.) But the Court did not hold that City Charter section 558 (requiring planning department approval before the City Council may adopt a zoning ordinance) inapplicable merely because section 558 omitted a reference to referenda. The Court held that, the plain language of section 558 expressly limits its application “ordinances, orders or resolutions by the Council.” (Los Angeles City Charter §558.) The Court held that, by its very terms section 558 is limited to ordinances “by the Council” and excludes referenda adopted by the voters of Los Angeles.