Case Number: EC066860 Hearing Date: June 01, 2018 Dept: A

Kevorkian v County of Los Angeles Sheriff’s Dept.

MOTION FOR RECONSIDERATION

Calendar: 8

Case No: EC066860

Hearing Date: 6/1/18

Action Filed: 7/10/17

Trial Date: Not set (CMC 7/18/18)

MP: Plaintiff, Antranik Kevorkian

RP: Defendants Los County Sheriff’s Department (“LASD”), Captain Reed, L.T. Marques, Sgt. Nebel, and Det. Hernandez

ALLEGATIONS IN COMPLAINT:

In this action, Plaintiff Antranik Kevorkian alleges that Defendants accused him of vandalism in a Ralph’s market parking lot and thereafter filed a misdemeanor criminal complaint against him. Plaintiff alleges this has subjected him to going to court and malicious prosecution.

The complaint, filed July 10, 2017, alleges causes of action for: (1) negligence; (2) negligent infliction of emotional distress; (3) violation of 14th Amendment to the U.S. Constitution (42 U.S.C. section 1983); (4) violation of Article 1, section 7(a) of the California Constitution; and (5) intentional infliction of emotional distress.

RELIEF REQUESTED:

Order reconsidering the April 13, 2018 order sustaining Defendants Reed, Marques, and Nebel’s demurrer without leave to amend and granting LASD and Hernandez’s motion to quash the summons and complaint.

DISCUSSION:

Under CCP §1008(a), a party may seek reconsideration of a prior order by filing a motion within 10 days of service of the notice of order. The motion must be based on new or different facts, circumstances, or law, and be made to the same judge that made the order. The party making the application 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. CCP §1008(e) states that CCP §1008 specifies the Court’s jurisdiction with regard to applications for renew and that no application to renew any order may be considered unless made according to section 1008. The language of CCP §1008(e) makes it absolutely clear that a Court’s power to hear successive motions is restricted to motions that comply with CCP §1008(a) and (b). (Scott Co. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal. App. 4th 197, 211.)

Plaintiff moves for the Court to reconsider the April 13, 2018 order. On April 17, 2018, Defendants filed a notice of ruling on the demurrer and motion to quash, which was served by mail on Plaintiff on April 16, 2018. As Plaintiff filed this motion on April 23, 2018, the motion for reconsideration is timely.

On April 13, 2018, the Court sustained without leave to amend Defendants Reed, Marques, and Nebel’s demurrer without leave to amend. The Court also granted LASD and Hernandez’s motion to quash the summons and complaint, and took their concurrently-filed demurrer off-calendar in light of the ruling on the motion to quash.

On May 8, 2018, judgment was entered in favor of Defendants Reed, Marques, and Nebel based on the ruling on the demurrer.

Plaintiff argues that, contrary to the Court’s ruling on the demurrer, he timely filed his lawsuit within the statutory time requirements of the California Tort Claims Act. He argues that he presented his claims on October 31, 2016 and the County gave him notice on November 18, 2016 that his claim did not substantially comply with Government Code, §910.8. (Mot., Ex. A.) He then refiled an amended tort claim by November 15, 2016, which the County rejected on December 28, 2016. (Id.) The County advised Plaintiff that subject to certain exceptions, he had 6 months to file a lawsuit on this claim. (Id.) However, this evidence does not add different facts, circumstances, or law, such that reconsideration is proper. This only confirms that Plaintiff’s filing of this lawsuit is untimely since 6 months from December 28, 2016 would be June 28, 2017—which makes the filing date of this action on July 10, 2017 untimely. In fact, the Court discussed in the ruling on the demurrer that Plaintiff had been served with notices of insufficiency on November 8, 2016 and January 3, 2017 and even taking the later January 3, 2017 date, would make the deadline to file the lawsuit July 8, 2017 (6 months, plus 5 days for mailing).

Plaintiff also argues that there are new facts that he did not mention that his criminal charges had been dropped on May 9, 2016. (Mot., Ex. B.) He also argues that he had discussions with his defense attorney prior to May 2016, he did not receive his criminal case documents until June 2016, and that he discovered his rights were violated in August 2016. However, these arguments have no bearing on whether his lawsuit was timely filed after he filed a government claim in October 2016. In particular, his charges were dropped and these events happened before he presented his claim to the County. The demurrer regarding the statutory time requirements did not only focus on the untimely submission of Plaintiff’s tort claim, but also on the timely filing of the complaint in this action. Thus, even if Plaintiff’s government claim was considered timely submitted, the Court still held that Plaintiff failed to timely file the complaint after his government claim had been rejected (twice). As such, Exhibit B does not present different or new facts, circumstances, or law that would warrant reconsideration of the ruling on timeliness.

Next, Plaintiff argues that the Court agreed on April 13, 2018 during verbal arguments that he calculated that the lawsuit was timely filed on July 10, 2017. However, there is no record or transcript documenting any statements made at the hearing to verify such statements.

With regard to the motion to quash, Plaintiff argues that he has now properly served LASD and Hernandez on April 18, 2018 using a registered process server. However, this is nearly a year after the original complaint was filed. Also, even if the Court were to consider this argument, Plaintiff has not provided a copy of the proof of service showing that LASD and Hernandez were properly served by a registered process server. Thus, Plaintiff has failed to establish that new facts, circumstances, or law exist to show that service was proper on LASD and Hernandez, that service is presumed valid, or that there are other grounds to reconsider the motion to quash.

Plaintiff also argues that on April 13, 2018, the Court verbally said and agreed that Plaintiff had 3 years to serve LASD and Hernandez. (See CRC Rule 3.110(b) [providing 60 days for complaint to be served on defendants and to file proofs of service following the filing of the complaint].) If there were such a reference, it would refer to the jurisdiction of the court set forth in Code of Civil Procedure Section 583.210.

Finally, Plaintiff objects to the judgment entered on May 8, 2018, arguing that Defendants Reed, Margues, and Nebel made the Court sign this order and that this was wrongful, prejudicial, biased, and illegal.

If a demurrer is sustained without leave to amend as to all causes of action alleged, the court will enter a judgment dismissing the action. (Cal. Prac. Guide Civ. Pro. Before Trial, Rutter Guide (June 2017 Update) Ch. 7(I)-A, §7:151.1; Kramer v. Intuit Inc. (2004) 121 Cal.App.4th 574, 578 [judgment of dismissal after demurrer sustained without leave to amend].) As such, the entry of judgment was proper.

For the reasons above, Plaintiff has failed to support his motion for reconsideration with different facts, circumstances, or law, such that reconsideration is not proper.

RULING:

Deny the motion for reconsideration.