Case Number: BC494098    Hearing Date: August 28, 2014    Dept: 91

The Motion by Defendants, David Oh General Contractor and Oh Developments, Inc., for Reconsideration of the Court’s Ruling on Motion for Summary Judgment is DENIED. The motion is procedurally and substantively defective as explained below.

The motion appears timely filed, but defective. The court’s file reflects that Defendants previously moved ex parte on 4/23/14 for reconsideration, but the court stayed the action. The ex parte application was not heard.

On 5/7/14, the court heard Defendants’ ex parte application to reconsider. At that time, the court ruled that the time for filing the motion for reconsideration would be extended 10 days after written notice by Plaintiff’s counsel to all Defendants and the Court that the automatic stay in the bankruptcy court has been lifted or terminated or that the bankruptcy action is terminated. Plaintiff’s Ex. 4, 2:12-18.

Plaintiff gave that notice of relief from stay on 6/17/14 and included the Bankruptcy Court’s order showing the stay was terminated. Ten days thereafter would have been 6/27/14. On 6/26/14, the court heard Defendants’ ex parte application to set hearing on Defendants’ motion to reconsider. The court continued the matter to 7/3/14. On that date, the court lifted the stay, and specially set the hearing for 8/28/14.

If the 6/26/14 application is the moving papers, it is timely filed within 10 days after notice of relief from stay. However, that motion is defective as the application does not provide a declaration showing new or different facts, circumstances or law to warrant reconsideration.

“The party making the application shall 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.” Cal Code Civ Procedure § 1008(a).

If the Defendants rely on their 4/23/14 ex parte application as their motion, then the motion is equally defective as it does not provide the required declaration.

The requirements of CCP § 1008 apply to “all applications to reconsider any order of a judge or court.” Subpart (e) provides that [n]o application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” CCP § 1008(e).

On the substantive merits, Defendants take issue with the court’s ruling disregarding additional evidence supplied with the Reply brief. As noted in the court’s ruling, additional evidence submitted with the Reply were not considered based on San Diego Water Craft v. Wells Fargo 102 Cal. App. 4th 308, 313 (2002) [“While the code provides for reply papers, it makes no allowance for submitting additional evidence or filing a supplemental separate statement. (§§ 437c, subd. (b).) This is consistent with the requirement supporting papers and the separate statement be served with the original motion. (§§ 437c, subd. (a).)”

If, as Defendants now contend, these exhibits were submitted with the moving papers, then there is no error, as the moving papers and supporting evidence were duly considered. However, the declarations of Gena Genatempo refers to Exhibits A-G. Defendants’ Ex. A.

Notwithstanding the foregoing, Defendants have not cited new or different facts, circumstances or law that would warrant reconsideration of the court’s ruling denying Defendants’ motion for summary judgment. Defendants cite Johnston v. Corrigan (2005) 127 Cal.App.4th 553, 556 for the contention that a timely filed memorandum of points and authorities not previously considered by the court constitutes “new circumstances” for purposes of Cal Code Civ Procedure § 1008.

That case is inapposite as it concerned timely filed moving papers. The issue here is untimely filed evidence not submitted with the moving papers, as required by Cal Code Civ Procedure § 437c and San Diego Water Craft, id.

Defendants’ criticism that the court’s ruling was erroneous with respect to the evidence considered or citation to evidence in dispute does not constitute “new or different facts, circumstances or law.” Gilberd v. AC Transit, 32 Cal. App. 4th 1494, 1500 (Cal. Ct. App. 1995).