Case Name: Maeve McMahon v. Santa Clara Valley Transportation Authority, et al.
Case No.: 16-CV-291461

Currently before the Court is the motion for reconsideration by plaintiff Maeve McMahon (“Plaintiff”).

Factual and Procedural Background

This is a personal injury action against defendants Santa Clara Valley Transportation Authority (“SCVTA”) and City of San Jose (“City”) (collectively, “Defendants”). According to the allegations of the complaint, “[c]onstruction of in-street track for a mass transit system through downtown San Jose began in 1985.” (Complaint, ¶ 16.) “The design, development, construction and maintenance of the tracks, and of the street access to the tracks, trains and ticket booths, were done by [SCVTA] and of the street and of the access to the tracks, trains and ticket booths by the [City].” (Id. at ¶ 17.) Defendants entered into “[a] joint powers agreement” with the County of Santa Clara whereby each of them “undertook to exercise possession, custody and control of the street, curbs, walkways, and street fixtures for access to the tracks, trains and ticket booths through downtown San Jose.” (Id. at ¶ 18.) At all relevant times, Defendants were allegedly “responsible for the design, construction, and maintenance and each of the defendants exercised possession, custody and control over the street, sidewalk, tracks, and street fixtures at and around the site identified as the San Antonio VTA Station [(‘Station’)].” (Id. at ¶ 19.) Defendants also owned the public property on which the alleged dangerous condition existed. (Id. at ¶ 24.)

At the Station, there was a “raised sidewalk leading toward the [Station], the tracks, and the ticket booths.” (Complaint, ¶ 20.) “The curb was low and not highlighted or marked to be seen as it began to become dark.” (Ibid.) Plaintiff alleges that “[t]here was no sufficient lighting” and “[t]he color did not provide notice of its placement or configuration.” (Ibid.) Plaintiff further alleges that the curb was “designed, placed and maintained in such a way as to create an unreasonably hazardous condition for people walking in and around that location.” (Ibid.) “The condition of the premises where the fall occurred was designed and constructed contrary to established, long term, industry standard conditions for common carriers” and “created a substantial risk of injury to members of the general public when the property was used with reasonable care and in a reasonably foreseeable manner.” (Ibid.)

On March 7, 2015, Plaintiff tripped “on the partially raised curb” at the Station. (Complaint, ¶ 23.) “She tripped because of the negligence, failure to warn, and failure to correct this dangerous condition.” (Ibid.) Plaintiff alleges that Defendants “negligently owned, maintained, managed and operated this dangerous location,” and “willfully failed to warn against or guard against this dangerous structure ….” (Id. at ¶¶ 25-26.)

Prior to the date of the incident, many people tripped at the subject location and “Defendants … received actual notice of these accidents, trips and injuries at that location.” (Complaint, ¶ 21.) “Defendants, knowing of the dangerous condition, and of the unreasonable risk of harm, and having the ability for many years to change and correct this condition, continued to possess and maintain this location in its dangerous condition.” (Id. at ¶¶ 21 and 28.) Plaintiff alleges that Defendants made changes to other dangerous conditions around the light rail tracks and stations, but partial changes were only made to some locations. (Id. at ¶ 22.) Plaintiff further alleges that “[t]he orange grooved curbs and tripping hazards in dense populated areas have never been modified or corrected to avoid the unreasonable tripping hazard that these structures pose.” (Ibid.) Finally, Plaintiff alleges that Defendants’ negligence caused her to fall and she suffered “physical injury, lost travel expenses, lost [sic] of income, incurred medical expenses, and sustained general damages including severe emotional distress ….” (Id. at ¶¶ 29-30.)

Based on the foregoing, Plaintiff filed the complaint against Defendants, alleging a single cause of action for premises liability.

The City and SCVTA each filed answers to the complaint on June 27, 2016.

On June 2, 2017, Defendants filed a joint motion for summary judgment arguing, in part, that the subject curb was owned and controlled by the City alone under the terms of the Master Agreement for the Downtown Transit Mall (“Master Agreement”). The motion was originally set for hearing on August 17, 2017.

On August 4, 2017, the hearing date was continued to November 2, 2017, by stipulation and order because Plaintiff’s counsel requested additional time to review the deposition testimony of an SCVTA witness. That order also continued the parties’ trial date from November 13, 2017 to February 5, 2018.

On August 18, 2017, Plaintiff filed papers in opposition to the motion for summary judgment. Defendants filed their reply on September 1, 2017. Thereafter, Plaintiff filed an “Objection to Evidence Submitted with Reply” on October 26, 2017.

The motion for summary judgment proceeded to hearing on November 2, 2017. On December 8, 2017, the Court issued its order on Defendants’ joint motion for summary judgment, granting the motion as to SCVTA and denying the motion as to the City. As is relevant here the Court determined that Defendants met their burden to show that the City, not SCVTA, had exclusive ownership and control over the curb, and Plaintiff failed to raise a triable issue of material fact. Notice of Entry of Order was filed three days later.

On December 20, 2017, SCVTA filed a proposed judgment.

That same day, Plaintiff filed a notice of motion for reconsideration and a declaration in support thereof. Two days later, Plaintiff filed her memorandum of points and authorities and an amended declaration in support of her motion. One week later, Plaintiff filed a supplemental declaration in support of her motion.

On January 3, 2018, Plaintiff filed a request for judicial notice in support of her motion for reconsideration. Plaintiff also filed an ex parte application for an order shortening time allowing her motion for reconsideration to be heard prior to the February 5, 2018 trial date. The ex parte application was granted the same day and the hearing on the motion for reconsideration was set for January 30, 2018.

SCVTA filed papers in opposition to Plaintiff’s motion for reconsideration on January 17, 2018.

On January 23, 2018, the Court entered judgment in SCVTA’s favor and dismissed all claims against SCVTA.

That same day, Plaintiff filed a reply declaration in support of her motion for reconsideration.

Discussion

Pursuant to Code of Civil Procedure section 1008, Plaintiff moves for reconsideration of the Court’s order on Defendants’ joint motion for summary judgment.

I. Request for Judicial Notice

Plaintiff asks the Court to take judicial notice of the reporter’s transcript of proceedings from the November 2, 2017, hearing on Defendants’ joint motion for summary judgment. Plaintiff’s request for judicial notice is GRANTED. (See Hupp v. Solera Oak Valley Greens Association (2017) 12 Cal.App.5th 1300, 1304, fn. 5 [taking judicial notice of a reporter’s transcript]; see also People v. Mason (2013) 218 Cal.App.4th 818, 824 [same].)

II. Legal Standard on Motions for Reconsideration

Code of Civil Procedure section 1008, subdivision (a) provides in pertinent part: “When an application for an order has been made to a judge, or to a court, and … granted, …, 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 new or different facts, circumstances, or law are claimed to be shown.”

The statute requires that a motion for reconsideration be based on new or different facts, circumstances, or law. (New York Times Co. v. Super. Ct. (2005) 135 Cal.App.4th 206, 212 (New York Times); Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-90 (Garcia); Kalivas v. Barry Controls Corp. (1996) 49 Cal.App.4th 1152, 1160-61.) A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time. (New York Times, supra, 135 Cal.App.4th at pp. 212; Garcia, supra, 58 Cal.App.4th at pp. 689-90; Gaines v. Fidelity National Title Insurance Company (2013) 222 Cal.App.4th 25, 47; Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246, 255.) Thus, a motion for reconsideration will be denied absent a strong showing of diligence that the newly discovered evidence could not have been discovered and produced at an earlier time. (New York Times, supra, 135 Cal.App.4th at pp. 212-13; Garcia, supra, 58 Cal.App.4th at p. 690; McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265-66 [“ ‘To merit reconsideration, a party must give a satisfactory reason why it was unable to present its “new” evidence at the original hearing.’ [Citation]”].)

III. Merits of the Motion

Upon review of the court file and the parties’ papers, the Court finds that it lacks jurisdiction to reconsider its order on Defendants’ joint motion for summary judgment.

First, the Court lacks jurisdiction to reconsider its order on Defendants’ joint motion for summary judgment because judgment was entered in SCVTA’s favor and all claims against SCVTA were dismissed on January 23, 2018. Once judgment has been entered, a trial court has no authority to rule on a motion for reconsideration challenging that judgment. (APRI Ins. Co. v. Super. Ct. (1999) 76 Cal.App.4th 176, 180-82 [“Plaintiff attempts to distinguish the many cases holding that a trial court is without jurisdiction to grant reconsideration after judgment is entered, by pointing out that her motion was filed before the trial court entered its judgment. While that is so, the argument misses the point. The issue is jurisdictional. Once the trial court has entered judgment, it is without power to grant reconsideration. The fact that a motion for reconsideration may have been pending when judgment was entered does not restore this power to the trial court.”]; see G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 621-22 (G.R.) [“[T]he court was correct that, once it had entered judgment, it had no authority to rule on his motion. ‘ “A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment….” [Citation.]’ ”]; see also Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1606-08 [“A court may reconsider its order granting or denying a motion and may even reconsider or alter its judgment so long as judgment has not yet been entered. Once judgment has been entered, however, the court may not reconsider it and loses its unrestricted power to change the judgment. It may correct judicial error only through certain limited procedures such as motions for new trial and motions to vacate the judgment.”].) For this reason, the Court lacks jurisdiction to reconsider its order on Defendants’ joint motion for summary judgment.

Second, the Court lacks jurisdiction to reconsider its order on Defendants’ joint motion for summary judgment because (1) the motion is not based on new or different facts or circumstances and, to the extent such facts or circumstances are identified, (2) Plaintiff fails to provide a satisfactory explanation for her failure to produce the evidence at an earlier time.

In her motion, Plaintiff argues that reconsideration is warranted for two reasons: (1) the City has now taken the position that the curb is owned, operated, and maintained by SCVTA even though the City’s position in Defendants’ joint motion for summary judgment was that it was the sole owner and entity responsible for the curb; and (2) Zahir Mohammad Gulzadah (“Gulzadah”)—the City’s person most knowledgeable (“PMK”) with regard to a deposition notice issued on November 29, 2017—testified at his December 20, 2017 deposition that, in his personal opinion, SCVTA is responsible for the maintenance and operation of the subject curb.

As an initial matter, Plaintiff presents no evidence demonstrating that the City has taken the position that SCVTA owns and controls the curb and is responsible for its maintenance and operation. No pleadings or papers have been filed by the City in which the City adopts such a position. Rather, Plaintiff merely presents evidence that a fact witness for the City, Gulzadah, personally believes that SCVTA is responsible for the maintenance and operation of the subject curb. Plaintiff has not shown that the City has adopted Gulzadah’s personal opinion as its own. To the extent the motion is based on the City’s purported “changed position,” the motion is not based on new or different facts or circumstances as there is no evidence showing that the City has actually changed its position.

Next, even assuming arguendo that Gulzadah’s deposition testimony constitutes new facts or circumstances, Plaintiff fails to provide a satisfactory explanation for her failure to produce the evidence at the original hearing on Defendants’ joint motion for summary judgment. Plaintiff’s moving papers and the declarations by Plaintiff’s counsel filed on December 20, 2017, December 22, 2017, and December 29, 2017, do not provide any explanation for why the deposition of the City’s PMK was not taken earlier. The issue raised in the motion for reconsideration—SCVTA’s ownership and control of the curb—was presented to Plaintiff when Defendants filed their joint motion for summary judgment on June 2, 2017. It should have been apparent from the motion alone that SCVTA’s ownership and control of the curb would play a central role in the case. Plaintiff was clearly aware of the existence of the Master Agreement and Defendants’ contention that the City alone was responsible for the curb. Plaintiff provides no explanation for why she failed to depose an important witness—the City’s PMK—on this issue prior to the hearing on Defendants’ joint motion for summary judgment. (See Jones v. P.S. Development Co., Inc. (2008) 166 Cal.App.4th 707, 725, overruled on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, fn. 7 [a motion for reconsideration was properly denied when the moving party failed to provide an adequate explanation for his failure to depose an important witness].) This evidence was available to Plaintiff throughout the discovery process and was easily obtainable. Moreover, if Plaintiff felt that testimony from the City’s PMK was necessary to oppose the motion for summary judgment, she could have requested a continuance of the hearing to depose or obtain a declaration from the City’s PMK. However, Plaintiff failed to take advantage of this opportunity.

For the first time in reply, Plaintiff submits a declaration by her counsel that addresses why the City’s PMK was not deposed prior to the hearing on Defendants’ joint motion for summary judgment. Plaintiff’s counsel declares, “I took the depositions of the City witnesses after the SCVTA depositions because I reasonably believed that the SCVTA had more knowledge and control over its own light rail stations.” (Dresser Reply Dec., p. 6:1-3.) In essence, counsel thought the testimony and evidence he already had was enough to oppose Defendants’ joint motion for summary judgment and did not think it was necessary to get anything further. Thus, a strategic and tactical decision was made not to seek the evidence that forms the basis of Plaintiff’s motion for reconsideration. It is readily apparent that with reasonable diligence this evidence could have been discovered and produced at the hearing on Defendants’ joint motion for summary judgment. Consequently, the Court finds that Plaintiff fails to provide a satisfactory explanation for her failure to produce this evidence at an earlier time.

Because Plaintiff’s motion does not satisfy the requirements of section 1008, subdivision (a), the Court has no jurisdiction to consider the defective motion. (G.R., supra, 185 Cal.App.4th at pp. 621-22.)

Accordingly, Plaintiff’s motion for reconsideration is DENIED.