Case Name: Mohsen v. Wells Fargo Shareholder Services, et al.
Case No.: 2014-1-CV-272395

After the Court’s entry of judgment in favor of Defendants based in part on special motions to strike, Defendants filed motions for attorney fees under Code of Civil Procedure section 425.16. The motions were heard and ultimately granted.

As he has done with every other order issued by the Court, Plaintiff seeks reconsideration pursuant to Code of Civil Procedure section 1008 of both orders granting the Microsemi Defendants’ motion for attorney fees on May 18, 2018, and Defendant Van de Hey’s motion for attorney fees issued on May 22, 2018.

Even if the motions are timely, Plaintiff does not present new or different facts, circumstances, or law

First, it appears the Plaintiff’s motions for reconsideration are not timely, but even if the motions for reconsideration are timely, Plaintiff does not present any new or different facts, circumstances, or law as is required pursuant to Code of Civil Procedure section 1008.

“Motions for reconsideration are regulated by section 1008, subdivision (a), which requires that any such motion be (1) filed within 10 days after service upon the party of written notice of entry of the order of which reconsideration is sought, (2) supported by new or additional facts, circumstances or law, and (3) accompanied by an affidavit detailing the circumstances of the first motion and the respects in which the new motion differs from it.” (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4th 868, 885.)

The legislative intent in enacting CCP §1008 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. (See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Mink v. Sup. Ct. (1992) 2 Cal.App.4th 1338, 1342; Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.) The burden under §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.” (New York Times Co. v. Sup. Ct. (2005) 135 Cal.App.4th 206, 212-213.)

The Supreme Court has rejected a moving party’s contention that on a renewed motion or motion for reconsideration the moving party does not have to present new facts, but only different facts. Numerous decisions have rejected the argument that a party may merely offer anything not previously presented to the court, because this would defeat the legislature’s stated goal of reducing the number of reconsideration motions and would remove an important incentive for parties to efficiently marshal their evidence. (See Even Zohar Constr. & Remodeling, Inc. v Bellaire Townhouses, LLC (2015) 61 Cal.4th 830; California Correctional Peace Officers Ass’n v Virga (2010) 181 Cal.App.4th 30, 44-48 [moving party is responsible for advancing all correct legal theories in its original motion, so as not to burden court with repeated motions for same relief; judge properly denied renewed motion based on a statute that party had failed to cite in its original motion, in absence of sufficient explanation why party had not done so].)

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. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198; See Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690 [matters raised by plaintiff in his motion for reconsideration consisted of information always within his possession, and he gave no satisfactory explanation for not bringing it out earlier].)

As both the Wells Fargo defendants and the Microsemi defendants argue, the purported “new or different facts” were already submitted in connection with the original oppositions, or argued at the hearing, or in unauthorized supplemental pleadings that purport to “summarize” arguments made to the Court. The Court considered all of the arguments made in the motions for reconsideration, and appropriately analyzed the amount of time spent and the hourly rates of the attorneys in question.

Therefore, even if Plaintiff’s motion for reconsideration can be considered as timely, the motions for reconsideration of the attorney fee orders are DENIED as Plaintiff fails to present any new or different facts, circumstances, or law as is required pursuant to Code of Civil Procedure section 1008.