06AS00279

Donald Martin vs. Theodore Cristodore

Nature of Proceeding: Motion to Set Aside

Filed By: Hansen, Glen C.

Plaintiffs Donald and Jacqueline Martin’s “Motion to Set Aside Ruling Due to
Excusable Neglect and Surprise” is denied.

Plaintiffs’ request for judicial notice is granted.

Under the guise of a CCP § 473 motion, Plaintiffs seek to set aside this Court’s June 4,
2013, ruling, a ruling which Plaintiffs have already unsuccessfully challenged by way of
a motion for reconsideration which was denied on October 18, 2013. Here, as
Defendants Theodore and Maria Cristodore correctly point out in opposition, this
motion must be denied on any number of grounds.

At its core, the motion seeks to set aside the Court’s June 4, 2013 ruling which found
that a fence within Plaintiffs’ easement did not violate the parties’ 2009 stipulated
judgment and to issue orders as to how the parties can comply with state and local
laws being violated by the placement of the fence. Plaintiffs complain that nothing in
that ruling addresses the fact that the fence violates state and local fire code
regulations which they claim the Court “likely overlooked that problem when it issued
the ruling.”

First and foremost, this motion must be denied because while brought under the
auspices of CCP § 473, it is nothing more than yet another motion for reconsideration.
Indeed, Plaintiffs claim that the Court was not apprised of the potential code violations ,
in part because their former counsel failed to properly present evidence to the Court
showing that the fence violated mandatory fire code regulations, due to former

counsel’s mistake, excusable neglect, inadvertence or surprise. The Court rejects this
argument. First, as seen from the papers that were filed in connection with Plaintiffs’
original motion that was the subject of the June 4, ruling, Plaintiffs expressly declared
that the fence was within the easement and underlined the following portion of their
declaration in the motion. “[I]t violates the Sacramento County Metro Fire District
Regulation that the Plaintiffs maintain a 20’ wide compacted base rock to allow fire
department access to the homes along the easement in case of fire.” (Plfs’ Motion Re:
Breach of 2009 Stipulated Motion 2:19-12.) The Court is at a loss to see how Plaintiffs
can claim that it was not fully apprised of the issue. In any event, a failure by the Court
to consider an argument raised by the parties is not a basis for a CCP § 473 motion.

While the Court did decline to consider the supplemental declaration of Plaintiffs’
former counsel which contained additional evidence regarding the location of the fence
and the potential fire code violations, given that it was untimely filed, the Court finds
that the failure to timely file the evidence was not the result of mistake, excusable
neglect, inadvertence or surprise. Indeed, critically absent from this motion is any
declaration from Ms. Mosley, counsel who submitted the supplemental declaration with
the new evidence which Plaintiffs argue was submitted to “contradict [Defendants’]
false and misleading arguments about the application of the fire code regulations”.
(Plfs’ Motion 10:12-14.) The Court rejects the contention that a reasonably prudent
attorney could not have anticipated Defendants’ opposition that attempted to show that
contrary to Plaintiffs’ moving papers, the fence did not violate any fire code. Further,
the supplemental declaration was executed prior to the time Defendants filed their
opposition to their motion which leads to the conclusion that Plaintiffs’ counsel made a
tactical decision not to file the supplemental declaration in a timely manner, not that
the new evidence was submitted in response to some surprise argument made by
Defendants in their opposition. “Conduct falling below the professional standard of
care, such as failure to timely object or properly advance an argument, is therefore not
excusable” under the discretionary provisions of CCP § 473. (Garcia v. Hejmadi
th
(1997) 58 Cal.App.4 674, 681-682.) The Court rejects Plaintiffs’ arguments that their
former counsel failed to present the supplemental declaration as a result of mistake,
inadvertence, excusable neglect or surprise based on false or surprising statements
made by Defendants in their opposition to the original motion. In short, the
requirements for relief pursuant to CCP § 473 are not met.

Given the above, the instant motion is nothing more than yet another motion for
reconsideration in which Plaintiffs seek to have this Court consider evidence that could
have been presented earlier. This Court has declined to consider the very evidence
sought to be considered on this motion when it denied Plaintiffs’ previous motions for
reconsideration. Each time the Court has found that there was no satisfactory
explanation for the failure to provide the purportedly different facts, circumstances or
law on the prior motions. A strict requirement of diligence is applied to the
presentation of new facts, circumstances or law. Garcia v. Hejmadi (1997) 58 Cal.
App. 4th 674, 690. A trial court has no jurisdiction to reconsider a prior order on the
basis of different facts, circumstances or law in the absence of a satisfactory
explanation for the failure to present them earlier. Baldwin v. Home Savings of
America (1997) 59 Cal. App. 4th 1192, 1200.” Thus, the Court has no jurisdiction to
grant what is essentially a third motion for reconsideration in this case.

Given the above, the Court need not and does not reach the remaining arguments
raised by Defendants in opposition as to why the instant motion should be denied.

The Court received, but did not consider Plaintiffs untimely reply filed and served four
court days prior to the hearing (November 28, and 29th were Court holidays). In any
event, even if considered, it simply argued the merits of the underlying motion which
given the above, the Court declined to reach given the complete failure to meet the
requirements of CCP § 473.

The motion to set aside the Court’s June 4, 2013, ruling pursuant to CCP § 473 is
denied.

Item 2 06AS00279

Donald Martin vs. Theodore Cristodore

Nature of Proceeding: Motion for Sanctions

Filed By: Kassouni, Timothy V.

Defendants Theodore Cristodore, et al.’s motion for sanctions pursuant to Code of
Civil Procedure § 128.7 is granted.

Defendants seeks sanctions pursuant to CCP § 128.7 based on Plaintiffs’ recent
motion for reconsideration filed on September 6, 2013, which the Court denied on
October 18, 2013. The Court noted that Plaintiff had filed numerous motions for
reconsideration of the parties’ 2009 stipulated judgment, each of which was denied
and their most recent motion was not supported by evidence of “new or different facts,
circumstances or law” to support a C.C.P. section 1008 motion. Specifically, the Court
ruled that “the Declaration of plaintiffs’ counsel provides no satisfactory explanation for
the failure to provide the purportedly different facts, circumstances or law on the prior
motions. A strict requirement of diligence is applied to the presentation of new facts,
circumstances or law. Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690. A trial
court has no jurisdiction to reconsider a prior order on the basis of different facts,
circumstances or law in the absence of a satisfactory explanation for the failure to
present them earlier. Baldwin v. Home Savings of America (1997) 59 Cal. App. 4th
1192, 1200.”

The Court also denied the motion on the basis that it was untimely and ruled that
“Motions for reconsideration must be filed and served within 10 days of the service of
the written notice of entry of the order. C.C.P., sec. 1008(a). Here, the Order which
appears to be challenged (the moving parties have failed to specify the order, as
required by C.C.P., sec. 1008(b)) was issued on June 4, 2013, but the Notice of
Motion was not filed until Sept. 6, 2013.” The ruling also indicated that it would not
entertain oral argument on the motion.

Here, Defendants counsel provided the requisite 21 days advance notice required by §
128.7 that the motion for reconsideration was duplicative of an earlier denied motion
for reconsideration and requested it be withdrawn. It was not withdrawn and the
motion was denied by the Court on October 18, 2013, finding that the motion was an
improper motion for reconsideration. The Court finds that sanctions are appropriate
pursuant to CCP § 128.7. Indeed, an improper motion for reconsideration is
sanctionable under § 128.7. (CCP § 1008(d).) Plaintiffs’ former counsel was
previously sanctioned for bringing an improper motion for reconsideration.

The opposition to this motion is confusing at best and was apparently presented

through three separately filed documents: “Plaintiffs’ Opposition to Defendants’ Motion
for an Award of Sanctions;” “Plaintiff’s Amended Separate Statement of Evidence in
Support of Motion for Summary Judgment/Adjudication”; “Plaintiff’s Chain of Title” and
a “Notice and Motion for Relief Under CCP section 473 (filed by former counsel which
current counsel dropped from calendar). Nothing in these documents have anything to
do with whether the latest motion for reconsideration which was denied on October 18,
2013, was an improper motion for reconsideration sanctionable under CCP § 128.7.
Indeed, they appear to do nothing more than once again reargue the merits of the
case.

Counsel seeks attorneys fees of $4,838 representing 16.4 hours of time at an hourly
rate of $295 for researching and opposing the September 6, motion for
reconsideration, and preparing the instant motion. The Court finds that the time spent
and hourly rate are reasonable with the exception of the 2.7 hours counsel states in
the reply brief were incurred in connection with the reply, as there is no supporting
declaration to substantiate that amount. Thus the Court awards a total of $4,041.5 in
monetary sanctions. These sanctions which shall be imposed against Plaintiffs and
Plaintiffs’ now-former counsel James Joseph Lynch, Jr. jointly and severally are
necessary in order to deter similar conduct. The monetary sanction is to be paid on or
before January 3, 2014. If the sanction is not paid by that date, Defendants’ may
prepare for the court’s signature a formal order granting the sanction, which may be
enforced as a separate judgment. (Newland v. Superior Court (1995) 40 Cal.App.4th
608, 615.)

Defendants’ counsel shall prepare a formal order for the Court’s signature pursuant to
CRC Rule 3.1312.