Nguyen v. Nguyen CASE NO. 113CV248916
DATE: 19 June May 2014 TIME: 9:00 LINE NUMBER: 15
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.808.6856 and the opposing party no later than 4:00 PM Thursday 19 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 19 June 2014, the motion of Defendant Vince Nguyen a.k.a. Newton Law Group (“Defendant”) for four or a consideration of the order of this Court made on 2 May 2014 was argued and submitted.

Plaintiffs filed formal opposition to the motion.

[All parties are reminded that all papers must comply with Rule of Court 3.1110(f). ]

I. Statement of Facts

This is a legal malpractice case. On 1 October 2006, Plaintiffs obtained a loan from First Financial Lender (“FFL”) in the amount of $1 million. The Deed of Trust to FFL securing Plaintiffs’ promissory note for the loan was recorded on 11 October 2006. Teri Ha, who is the wife of Defendant, is the president of FFL. In December of 2006, FFL assigned Plaintiffs’ Promissory Note and Deed of Trust to Aurora Loan Services LLP and Aurora became the loan servicer.

In late 2010, Plaintiffs defaulted on the loan that had been assigned to Aurora. On 21 December 2010, Plaintiffs filed a complaint against FFL, Aurora, and others in Alameda County Superior Court, seeking a preliminary injunction to prevent a foreclosure on Plaintiffs’ home in Oakland. Around that time, Teri Ha advised Plaintiffs that FFL could assign the Deed of Trust securing their $1 million Note to Chase Merritt Fund I, LLC in order to obtain a loan modification, and on this advice, Plaintiffs consulted with Defendant about the suit.

On 7 June 2011, Plaintiffs retained Defendant to advise them in connection with their lawsuit. Defendant then showed Plaintiffs an Assignment of Deed of Trust, dated 1 August 2011, in which FFL assigned to Chase Merritt all beneficial interest in Plaintiffs’ Deed of Trust securing its $1 million loan. Plaintiffs allege that this Deed of Trust is fraudulent because the Deed of Trust had already been assigned to Aurora.

On 13 November 2011, Plaintiffs propounded on Defendant Set One of the discovery requests. On 18 December 2013, Defendant served answers to these discovery requests. The answers were in hybrid-form stating objections, but also answering the requests. The answers were signed, but were not in compliance with Code of Civil Procedure § 2015.5. The answers were not certified under the penalty of perjury that the information was true and correct. The verification also failed to state the place where the signature was made.

On 26 December 2013, Plaintiffs propounded on Defendant Set Two of discovery requests, including the form interrogatories the subject of the instant motion. On 30 January 2014, Defendant served answers to these form interrogatories.

The motion Of Plaintiffs to compel further responses was argued and submitted on 1 May 2014. In its Order filed on 2 May 2014, this Court ordered that Plaintiffs’ motion to compel a further response to Set Two of the Form Interrogatories is GRANTED. Defendant was ordered to serve responses to Set Two Form Interrogatory No. 15.1 without objections, with verifications, and within 20 days of the filing of this Order.

Defendant filed this is motion for reconsideration on 19 May 2014. Defendant claims that the issues of a verification of discovery responses had arisen on prior occasions, and that Plaintiffs have provided responses with less-than-code-compliant verifications. He therefore asks this Court to find either that strict enforcement applies to both parties, a war or alternatively, a substantial compliance criterion is accepted.

In the opposition, Plaintiffs assert that a motion for reconsideration must be based on new or different facts or circumstances or law than those which were before the court at the time of the original ruling. Further, the motion must be supported by a declaration stating the previous order, by which judge it was made, and the new or different facts, circumstances or law that are claimed to exist. Code of Civil Procedure, § 1008. Plaintiffs argue that no such showing has been made.

Plaintiffs argue that any issue of the flawed exemplar verification could have been raised at the hearing on 1 May 2014 and the failure to do so is sufficient grounds for denial of the motion.

Analysis

Under the plain language of Code of Civil Procedure, § 1008(a), 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.4d 1494, 1500.) The clear legislative intent of § 1008(a) 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. Id.

Assuming a party has presented “new or different law” in support of its motion for reconsideration this alone does not mean the motion fully complied with all applicable requirements, as the party must also prove a satisfactory explanation for its failure to present this information earlier. (Baldwin, supra.) The party seeking reconsideration must provide a satisfactory explanation for the failure to produce this information at an earlier time, such that the party could not with reasonable diligence have discovered and produced at the prior hearing. (Id.; Glade v. Glade (1995) 38 Cal.App.4d 1441, 1457; Mink v. Superior Court (1992) 2 Cal.App.4d 1338, 1342; Blue Mountain Dev. Co. v. Carville (1982) 132 Cal.App.3d 1005, 1012-1013.

Abandoning the diligence requirement would be a “miserable result” that would “defeat the Legislature’s state goal of reducing the number of reconsideration motions and would remove all incentive for parties to efficiently marshall their evidence.” (Baldwin at 1199; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689.) Abandoning the diligence requirement would put this Court in the position of reading law and motion matters twice or more times.

Defendant has not satisfactorily shown why this argument concerning prior verifications could not have been raised earlier.

Order

The motion of Defendant for reconsideration is DENIED.