Case Name: Lai v. Allstate Insurance Corporation, et al.
Case No.: 18CV322243

Plaintiff Sharon Lai (“Plaintiff”) moves for reconsideration of an order issued on February 7, 2019 sustaining defendant Allstate Insurance Corporation’s (“Allstate”) demurrer to the complaint without leave to amend.

I. Factual Background

This is an action arising out of a motor vehicle accident. According to the allegations of the Judicial Council form complaint, Plaintiff’s vehicle was rear-ended by defendant Vani Aboud (“Aboud”) on September 1, 2015, on Interstate 280 in Campbell. Plaintiff sets forth no charging allegations against Allstate but acknowledges that she is suing it because it insured Aboud. Plaintiff’s complaint, which was filed on January 24, 2018, asserts a single cause of action against the defendants for “general negligence.”

II. Procedural Background

On February 22, 2018, Aboud filed a demurrer to the complaint, which was scheduled for hearing on April 19, 2018. Separately, Allstate filed a demurrer to the complaint on April 4, 2018, which was scheduled for hearing on May 24, 2018. On April 13, 2018, Plaintiff electronically served Aboud with a “Motion to Extend Time to Reply to Demurrer.” (Declaration of Jack T. Bussell in Support of Aboud’s Opposition to Motion for Reconsideration (“Bussell Decl.”), ¶ 5.) However, the papers did not indicate where and when the motion would be heard or whether it would be brought ex parte, and it was not filed at that time with the Court. (Id.) In an abundance of caution, Aboud filed an opposition to the motion, but did not hear anything further about it. (Id.)

Ultimately, no opposition was filed to Aboud’s demurrer, nor was the tentative ruling sustaining the demurrer without leave to amend contested by Plaintiff who, while self-represented, is a licensed attorney. Aboud subsequently sent several emails asking Plaintiff to approve the order granting the demurrer as to form but Plaintiff did not do so. At a case management conference on May 8, 2018, the Court signed an order sustaining the demurrer. (Bussell Decl., ¶ 6.) Plaintiff did not attend the hearing. Allstate’s demurrer was also unopposed, and the Court adopted its tentative ruling sustaining that demurrer without leave to amend on May 24, 2018.

An order to show cause dismissal hearing was set for August 16, 2018, with the Court indicating that if Plaintiff failed to appear, the case would be dismissed. (Bussell Decl., ¶ 7.) This is precisely what happened. (Id. at ¶ 7.) However, the dismissal was subsequently set aside by the Court.

On January 18, 2019, Plaintiff attempted to file her “Motion to Extend Time to Reply to Defendant’s Demurrer.” However, Plaintiff failed to pay the necessary filing fee and therefore the clerk’s office rejected the filing. An order granting Allstate’s demurrer was finally signed by the Court on February 1, 2019 and filed on February 7th. Notice of entry of the order was filed a week later ((February 14th) by Allstate.

On April 4, 2019, Plaintiff filed the instant motion for reconsideration of the Court’s February 7, 2019 order sustaining Allstate’s demurrer to the complaint. Allstate opposes the motion, as does Aboud.

III. Plaintiff’s Motion for Reconsideration

Plaintiff makes the instant motion pursuant to Code of Civil Procedure section 1008 (“Section 1008”), which represents the Legislature’s attempt to regulate what the Supreme Court has referred to as “repetitive motions” and 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.4th1494, 1500; see Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198.) Thus, 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.” (New York Times Co. v. Sup. Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212-213.) A party seeking reconsideration of a prior order based on “new or different facts, circumstances or law” must provide a satisfactory explanation for failing to present the information at the first hearing; i.e., a showing of reasonable diligence. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690.)

As a preliminary matter, both defendants maintain that Plaintiff’s motion is untimely. Subdivision (a) of Section 1008 requires that a motion for reconsideration be filed within 10 days after service upon the party of written notice of entry of the order of which reconsideration is sought. As set forth above, the notice of entry of the Court’s order on Allstate’s demurrer to the complaint was served on Plaintiff on February 14, 2019. Thus, in order to be timely, Plaintiff would have to have filed her motion for reconsideration by February 24, 2019. However, Plaintiff did not file her motion until April 24, 2019, approximately two months later, and offers no explanation, let alone justification, for this delay. The motion can be denied on this basis alone, although the Court has inherent power to correct its own errors, should any exist. (See Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1308; Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108.) Considering Plaintiff’s dilatory conduct with regards to Allstate’s demurrer- she did not file an opposition or appear at the hearing to contest the ruling and did not file the instant motion until over a year after the hearing- the Court is inclined to deny the motion on this basis.

However, even if the Court were to consider the merits of Plaintiff’s motion, she fails to identity any “new or different facts, circumstances or law” which warrants reversal of the Court’s prior order. Plaintiff asserts that the Court did not consider her “timely” Motion to Extend Time to File an opposition to the demurrer and she maintains that she did contest the tentative ruling but that no argument was entertained because counsel for Allstate and Aboud were not present. There are several problems with these assertions. First, Plaintiff’s “motion” for an extension to respond to the demurrer was not properly before the Court due to her own failure to pay the filing fee. Second, the basis of the “motion” (which could have and likely should have been done on an ex parte basis) was that Plaintiff, who is a licensed attorney, needed additional time to locate a personal injury attorney to represent her. Plaintiff originally filed her complaint in January 2018 and Allstate’s demurrer was not scheduled to be heard until over four months later in May 2019. Problematically, she offers no rationale for her delay in obtaining counsel during that time. Moreover, according to Aboud’s opposition, the Court was aware that her motion to extend time to respond had been rejected when it ruled on the demurrer. Thus, to characterize the rejection of this “motion” as a “new fact or circumstance” would not be accurate.

More troublesome is Plaintiff’s representation that she contested the tentative ruling on Allstate’s demurrer. According to the minute order filed after the hearing on the demurrer on May 8, 2019, only counsel for the defendants appeared, not Plaintiff, and an order to show cause regarding her failure to appear was scheduled, with a warning that a subsequent failure by Plaintiff to appear at that hearing could result in dismissal of her case. This too does not reflect any “new or different facts, circumstances or law” within the meaning of Section 1008.

Plaintiff lastly suggests that her due process rights have been violated because the Court sustained the demurrer without allowing her an opportunity to respond to the substantive merits of Allstate’s demurrer. Not only did Plaintiff have such an opportunity, but she does not address the basis of Allstate’s demurrer—that she had no standing to sue it directly as Aboud’s insurance carrier—in her motion. (See Shaolian v. Safeco Ins. Co. (1999) 71 Cal.App.4th 268, 271 [stating that “[b]ecause an insurer’s duties flow to its insured alone, a third party claimant may not bring a direct action against an insurance company”].) Therefore, even if the Court were inclined to overlook the fact that Plaintiff’s motion fails to comply with Section 1008 (both as untimely and in its failure to identify any new or different facts, circumstances or law) and undertake reconsideration of the demurrer on its merits, Plaintiff proffers no explanation for how the Court’s ruling is legally deficient.

For all of the foregoing reasons, the Court finds no basis to reverse its ruling on Allstate’s demurrer to the complaint. Accordingly, Plaintiff’s motion for reconsideration is DENIED.