Case Number: BC440188 Hearing Date: May 08, 2018 Dept: 51

Background

Plaintiff Bahman Khodayari sues defendants Alexander H. Escandari, Escandari Law Firm, Inc., and Escandari and Michon for damages and other relief based on allegations of legal malpractice.

Plaintiff alleges that defendants lacked expertise in criminal and real estate law, took advantage of plaintiff’s lack of English language proficiency, failed to communicate, and failed to advance plaintiff’s position in an underlying legal matter concerning his property. Plaintiff unsuccessfully demanded a refund of legal fees paid. Defendants formally withdrew. Plaintiff was incarcerated for over a year.

On June 22, 2010, plaintiff filed a complaint, on November 12, 2010, a first amended complaint, and on June 4, 2012, the operative second amended complaint asserting 17 causes of action. On August 20, 2012, the Court (Judge Khan) sustained without leave in part and overruled in part defendants’ demurrer to the SAC, dismissing IIED and abuse of process.

On March 25, 2011, defendants filed a cross-complaint against plaintiff for slander and IIED.

On January 17, 2013, the Court (Judge Khan) granted defendants’ terminating sanctions motion and dismissed the SAC. On October 20, 2014, a remittitur dismissing plaintiff’s appeal of the order dismissing his SAC was filed. On July 10, 2017, a remittitur reversing the order was filed.

On July 31, 2017, plaintiff filed a memorandum of costs on appeal.

On March 15, 2018, the Court (Judge Raphael) granted defendants’ motion to set aside the memorandum of costs. 3/20/18 Notice of Ruling.

On March 26, 2018, plaintiff filed this opposed motion for reconsideration of the order setting aside the costs memorandum. The Court considered the moving and opposition papers, and rules as follows.

Plaintiff is self-represented. Self-represented litigants are held to the same standards that apply to licensed attorneys. Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1056; Lombardi v. Citizens Nat’l Trust & Sav. Bank (1955) 137 Cal.App.2d 206, 208-209 (stating that self-represented litigants are “restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.”)

Defendants are self-represented attorneys.

Failure to Tab Exhibits

Both sides should note: “Each exhibit must be separated by a hard 8 1/2 x 11 sheet with hard paper or plastic tabs extending below the bottom of the page, bearing the exhibit designation.” CRC, rule 3.1110(f).

All parties are ORDERED to strictly comply with this rule or risk their exhibits being rejected, struck, and/or disregarded, and/or a monetary sanction. This rule and order apply equally to fax filed papers and courtesy copies.

Table of Contents

Both parties should note: “A memorandum that exceeds 10 pages must include a table of contents and a table of authorities.” CRC, rule 3.1113(f). Both parties’ memoranda exceed 10 pages but omit tables of contents and authorities.

All parties are ORDERED to strictly comply with this rule or else risk their papers being rejected, struck, and/or disregarded, and/or a monetary sanction.

Motion for Reconsideration Standard

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law’ which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion …. A motion for reconsideration will be denied absent a strong showing of diligence.” Forrest v. State of Calif. Dept. of Corps. (2007) 150 Cal.App.4th 183, 202; Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1199 (noting that 1992 amendment to Code of Civil Procedure section 1008 tightened the diligence requirements.)

A “strict requirement of diligence” is providing a “satisfactory explanation for failing to provide the evidence earlier.” Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. For example, in Garcia, the court denied a motion for reconsideration on diligence grounds where it found “[t]he information consisting of Garcia’s own declared knowledge was obviously always within his possession, and no satisfactory explanation appeared for not bringing it out earlier. The matters it addressed had been placed in issue by the motion, and there is no showing Garcia had been unavailable to counsel anytime during preparation of the initial opposition.” Ibid. (emphasis in original.)

Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500. Judicial error does not constitute a new fact or circumstance under Code of Civil Procedure section 1008. Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707.

Analysis

In its ruling, the Court explained its reasons for concluding, by a preponderance of the evidence, that the costs memorandum had not been properly served.

Plaintiff now asserts five main arguments. They are all unmeritorious under the applicable standard, and plaintiff fails to satisfy his burden.

First, he argues that he followed the law, rendering the memorandum of costs a final judgment. Plaintiff cites California Rules of Court rules that existed at the time of the motion to set aside. Plaintiff does not provide any explanation for failing to raise these rules earlier.

Second, plaintiff asserts that the motion was untimely and moot, and should be dismissed with prejudice as unmeritorious and frivolous. Plaintiff does not state any explanation for not raising these issues on the underlying motion. Plaintiff also asserts that defendant (without identifying which one) violated the law. Plaintiff does not persuasively explain how this assertion would have affected the motion to set aside.

Third, plaintiff asserts that the description of costs does not bear on the costs memorandum, and the claimed costs were relatively low. He also states that he did not receive the opposition within 15 days. Plaintiff necessarily knew about the opposition’s timeliness at the time of the hearing on the earlier motion. Plaintiff cites California Rules of Court that existed at the time of the set aside motion and case law dating back to the 1990s. Plaintiff does not explain why he failed to raise these issues on the earlier motion.

Fourth, plaintiff states that he was not required to proffer proof of the claimed costs because the costs memorandum was verified. Plaintiff cites law that existed at the time of the earlier motion and does not explain why he failed to raise this issue at the hearing on the earlier motion. Additionally, plaintiff fails to recognize that if the opposing party successfully rebuts the presumption of truth created by the verification, the burden shifts back to plaintiff to prove the costs’ propriety.

Finally, plaintiff asserts that Escandari should be sanctioned. Such relief cannot be granted on a motion for reconsideration. Additionally, plaintiff bases this contention on Escandari’s purported 2011 bankruptcy filing. Obviously, the fact of the bankruptcy existed before the set aside motion, and plaintiff was likely on constructive notice thereof. Plaintiff states no reason why he failed to discover and raise the fact of the purported bankruptcy at the time of the set aside motion.

Conclusion

The motion is DENIED. Plaintiff to give notice.