Case Number: SC123333 Hearing Date: March 13, 2018 Dept: 53

lauren kattuah vs. bradley kramer , et al., SC123333, MARCH 13, 2018

[Tentative] Order RE: PLAINTIFF’S MOTION FOR RECONSIDERATION

Plaintiff LAUREN KATTUAH’s Motion for Reconsideration is DENIED.

BACKGROUND

Plaintiff Lauren Kattuah (“Plaintiff”) brought this action against her former attorneys, Douglas Linde (“Linde”) and Bradley I. Kramer (“Kramer”) (jointly, “Defendants”) in a medical malpractice suit, asserting that they committed legal malpractice, which caused a motion for summary judgment to be granted against her in the medical malpractice suit. In her complaint, Plaintiff asserts that Defendants failed in their obligations to her by failing to: (1) conduct any discovery in, (2) obtain an expert declaration in support of, or (3) oppose the motion for summary judgment in the medical malpractice suit.

On January 3, 2018, the Court granted Kramer’s motion for summary judgment on the grounds that the statute of limitations barred Plaintiff’s claims and that there was no basis for tolling of the statute of limitations.

Plaintiff now moves the Court to reconsider its granting of Kramer’s motion for summary judgment. Kramer opposes.

LEGAL STANDARD

Code of Civil Procedure section 1008(a) provides:

When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. 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.

The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342 [“[T]he party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.”] New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213 [“The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.”].)

Reconsideration cannot be granted based on claims the court misinterpreted the law in its initial ruling; that is not a “new” or “different” matter. (Gilberd v. AC Transit, supra, 32 Cal.App.4th at p. 1500.) Moreover, counsel’s mistake based on ignorance of the law is not a proper basis for reconsideration. (Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658, 670.)

As an initial matter, Plaintiff’s statute of limitations argument is simply a claim that the court misinterpreted the law in its ruling on Kramer’s motion for summary judgment; this is not new or different matter that warrants reconsideration. Plaintiff presents no new law that changes the Court’s interpretation of the law, and more importantly, Plaintiff presents no new facts either. The evidence attached to Plaintiff’s declaration consists of a letter dated August 2, 2013 detailing Plaintiff’s medical condition (Ex. 1), an email to Kramer and co-defendant Douglas Linde (“Linde”) from Plaintiff asking for parts of her file and imploring Kramer and Linde to oppose the motion for summary judgment in the medical malpractice case (Ex. 2), and an email referring to a voicemail from Kramer to Plaintiff (Ex. 3). In Plaintiff’s Notice of Errata re Plaintiff’s Motion for Reconsideration filed two days after her initial motion, Plaintiff attaches two more exhibits: a declaration she filed seeking a continuance of the motion for summary judgment in the medical malpractice case (Ex. 4) and a printout from a website that purports to show Kramer “auditioning” to be on a reality show during the time he was representing Plaintiff (Ex. 5). None of this evidence constitutes “new” matter that would warrant the Court’s reconsideration of the statute of limitations argument. Insofar as any of this evidence is submitted to demonstrate that Plaintiff was physically disabled during the relevant time period, the Court finds that this also does not constitute “new” matter, as this argument was previously considered by the Court in its ruling on Kramer’s motion for summary judgment.

Moreover, in presenting this evidence, Plaintiff fails to provide a satisfactory explanation for the failure to produce any of this evidence at an earlier time. With particular respect to Exhibit 2, the email to Kramer and Linde asking for her file and asking them to oppose the medical malpractice motion for summary judgment was sent on October 8 and 9, 2013. It is unclear if these emails were submitted as evidence in opposition to Kramer’s motion for summary judgment, but even if not, Plaintiff does not explain why not. Similarly, with regard to Exhibit 3, if this voicemail was not submitted as evidence in opposition to Kramer’s motion for summary judgment, there is no explanation for why not. These two pieces of evidence were presumably within Plaintiff’s possession during all relevant times, so the Court does not find that this evidence constitutes “new” matter to warrant reconsideration.

In reply, Plaintiff, now represented by counsel, contends that the fact of her representation by new counsel constitutes changed circumstances. (Reply, p. 2: 7-9.) This contention is not supported by any authority, and the Court is not aware of any authority that provides that the substitution of new counsel warrants reconsideration of this matter. Again, Plaintiff points to no new facts in her Reply, just a reiteration that the Court misinterpreted the law in granting Kramer’s motion for summary judgment.

CONCLUSION

For the foregoing reasons, Plaintiff’s Motion for Reconsideration is DENIED.

Kramer is ordered to provide notice of this ruling.

DATED: March 13, 2018

_____________________________

Howard L. Halm

Judge of the Superior Court