2017-00214451-CU-MC

William Doan vs. Asish Goshal

Nature of Proceeding: Motion for Reconsideration

Filed By: Doan, William

Plaintiff’s Motion for Reconsideration is DENIED.

The Notice of Motion fails to provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact Defendant’s counsel forthwith and advise them of Local Rule 1.06 and the Court’s tentative ruling procedure. If moving party is unable to contact counsel prior to hearing, moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).

Plaintiff filed this action on June 22, 2017, alleging causes of action for violation of Civil Code section 52.1(b) and intentional infliction of emotional distress. Defendant Asish Ghoshal demurred to the Complaint. Plaintiff attempted several times to obtain a default judgment against Defendant Ghoshal without notice to defense counsel, along with several other motions, including suing lead defense counsel for declining to accept electronic service, insisting that defense counsel be disbarred and attempting to join the California State Bar as a party. Ultimately, the Court sustained Defendant’s demurrer with leave to amend on November 17, 2017, on the grounds that Plaintiff lacked standing to pursue a section 52.1 claim and had failed to plead insufficient facts to constitute a cause of action for IIED.

On November 20, 2017, Plaintiff filed a First Amended Complaint. Plaintiff did not cure the deficiencies in the original complaint, but instead removed the section 52.1 cause of action and added four new causes of action for trespass to chattels, negligent hiring and retention, assault, and battery. Again, Defendant demurred to the First Amended Complaint, along with filing a motion to strike the prayer for punitive damages, pursuant to Code of Civil Procedure section 425.13

On March 21, 2018, the Court sustained the demurrer and granted Plaintiff leave to file a Second Amended Complaint only as to the two causes of action set forth in the original complaint (i.e., Civil Code section 52.1 and IIED causes of action) no later than April 4, 2018. The Court simultaneously granted Defendant’s motion to strike punitive damages as being unopposed.

Instead of filing the Second Amended Complaint as directed, Plaintiff filed a motion for leave to amend to remove the section 52.1 claim and add the other four causes of action. The Court denied that Motion without prejudice on May 3, 2018, finding that his motion failed to comply with CRC 3.1324. The Court also extended the time for filing of the Second Amended Complaint only as to the original two original causes of action until May 15, 2018.

Rather than file a Second Amended Complaint, or even a renewed Motion to File a Second Amended Complaint that included the four “new” causes of action and deleted the section 52.1 claim, Plaintiff filed the instant Motion for Reconsideration of the Court’s denial of his Motion to Amend the Second Amended Complaint on May 14, 2018, which is timely since May 13 fell on a Sunday. In support of his motion, Plaintiff fails to include a memorandum of points and authorities, relying solely on his own declaration, which, in effect, states only that he has learned that the receptionist in Defendant’s office is Defendant’s wife. Plaintiff argues that this knowledge warrants the Court grant him leave to file a new amended complaint.

Motions for reconsideration include special requirements. (California Correctional

Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 45-46, & fns. 14-15; see Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 688-690). Code of Civil Procedure, section 1008(a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. Specifically, section 1008 states, in relevant part: “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 … 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. (Id.)

A strict requirement of diligence is applied to the presentation of new facts, circumstances or law. (Garcia v. Hejmadi, supra, at p.690.) 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 time of trial. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

Here, Plaintiff’s declaration reflects the “new evidence” to the identity of Defendant’s wife, whom Plaintiff believes should be substituted as a Doe Defendant. First, Plaintiff’s declaration fails to establish exactly when this purportedly new evidence was obtained and why he could not have obtained this evidence sooner. More importantly, however, whatever Plaintiff’s knowledge may now be regarding the identity of Defendant’s wife is largely immaterial as to the Court’s denial of the prior motion. Plaintiff wholly failed to comply with the terms of CRC 3.1324, which was the basis for the Court’s denial. Plaintiff has not established any basis by which that lack of compliance should now be excused via a motion for reconsideration. Further, the Court directed Plaintiff to file a Second Amended Complaint as to the two original causes of action by a date certain: May 15, 2018. Plaintiff failed to comply with that directive. If Plaintiff believes that he has additional new facts supporting a motion to amend the pleadings, then he may file the appropriate motion before this Court; the Court does not rule at this time whether such a motion would be granted.

The Court has noted several times in this action that Plaintiff’s propria persona status does not excuse his failure to comply with the Code of Civil Procedure and the Rules of Court. Self-represented litigants are not entitled to special treatment. (Nelson v.

Gaunt (1981) 125 Cal. App.3d 623, 638-639.) While Plaintiff is self-represented and no doubt has little or no legal training, self-represented litigants are required to follow the same procedural rules that govern civil litigation. (McComber v. Wells (1999) 72 Cal.App.4th 512, 522-523.) A party representing himself or herself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247; Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210). In other words, Plaintiff’s failure to file a substantive opposition here is accorded the same treatment as would any other party engaging in the same conduct who was represented by counsel. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (Rutter Group 2011) § 5:335, p. 5-88; see Rappleyea v. Campbell (1994)
8 Cal.4th 975, 984-985 [“[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation.”]. Plaintiff is cautioned that continued failure to abide by the

established Rules of Court and the Code of Civil Procedure may warrant sanction by the Court.