2013-00140551-CU-DF

Larry Wimberly vs. Sheila Kearney

Nature of Proceeding: Motion for Reconsideration of 10/15/2013 Hearing

Filed By: Wimberly, Larry

Plaintiff’s Motion for Reconsideration of the Court’s October 15, 2013 order is denied.

On October 15, 2013 the Court granted defendants’ motion for protective order. The
protective order stayed discovery pending a ruling on the Defendants’ petitions for
access and disclosure of juvenile case files. Plaintiff’s motion is denied as untimely.
The motion was filed on April 28, 2014, more than five months after the service of
notice of entry of said order on November 11, 2013. Motions for reconsideration must
be filed 10 days from the service of the notice of entry of order. CCP 1008(a);
Advanced Bldg. Maintenance v State Comp Ins. Fund ( 1996) 49 Cal.App.4th 1388,
1392.

Plaintiff’s CCP 170.6 affidavit is rejected as untimely. A challenge under 170.6 is
untimely where it was filed between the issuance of an order by the court and a
hearing on a motion to reconsider that same order. Valenta v Regents of Univ. of Cal.
(1991) 231 Cal. App.3d 1465, 1467. In any event, on a motion for reconsideration,
CCP §1008(a) requires the original judge to hear the
motion, and no peremptory challenge may be exercised. Deauville Restaurant, Inc. v
Superior Court (2001) 90 Cal. App. 4th 843, 847-852, (this provision overrides party’s
right to exercise peremptory challenge to prevent judge from hearing reconsideration
motion).

The motion is denied on the additional ground that there are no new facts,
circumstances or law to justify granting reconsideration. CCP 1008(a).

Even if plaintiff’s motion for reconsideration was proper, the court would deny the motion on the ground that the prior petition in the Juvenile Court was denied without
prejudice and there is presently a pending petition for the records, necessitating the
continued stay.

The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.