2017-00216691-CU-MC

City of Elk Grove vs. Kiran Rawat

Nature of Proceeding: Motion for Reconsideration

Filed By: Rawat, Kiran

Self-represented Defendant/Cross-complainant Kirwan Rawat aka Karen Singh’s (“Defendant”) motion for reconsideration and for other relief is denied.

Plaintiffs’/Cross-Defendants’ City of Elk Grove and the People of California’s

(“Plaintiffs”) request for judicial notice is granted.

On November 5, 2018, this Court granted Plaintiffs’ special motion to strike Defendant’s amended cross-complaint. On December 6, 2018, the Court denied her motion for reconsideration of that ruling. On December 10, 2018, this Court granted Plaintiffs’ motion for attorneys’ fees pursuant to CCP § 425.16(c)(1) in the amount of $5,704.20. Defendant now seeks reconsideration of that order.

As pointed out in opposition, while the proof of service states that the motion was served on the City Attorney on December 10, 2018 (though no manner of service is specified), the same day as the Court ruled on the fee motion, the City Attorney was not served and Plaintiffs only found this motion on the Court’s on-line case file. (Hobbs Decl. ¶ 2.) Service issues [e.g. no service] have been often-repeated by the City Attorney in prior motions. The Court has admonished Defendant numerous times, including in connection with the anti-SLAPP motion, regarding her failure to properly serve Plaintiffs and warned that future failures could result in the Court refusing to consider her papers. This failure is a sufficient basis to deny the motion.

In any event, there is no basis for the Court to reconsider its ruling granting Plaintiffs’ fees as the prevailing party on their special motion to strike. 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. (CCP § 1008.)

Here, Defendant simply raises an argument based on case law that existed at the time she could have opposed the fee motion. Specifically she argues that the fee motion was premature because when the Court granted the anti-SLAPP motion it indicated that any fee motion should be filed when the Court’s order was final. Defendant argues that this would not happen until any appeal was concluded. Defendant’s declaration is devoid of any new or different facts, circumstances, or law that could not have been previously presented to the Court. (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198; Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.)

At base, Defendant disagrees with the Court’s ruling. This is not a basis for reconsideration as “in almost all instances, the losing party will believe that the trial court’s ‘different’ interpretation of the law or facts was erroneous.” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) A court “acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’” (Id.) The Court has no jurisdiction to grant the request for reconsideration.

In any event, Defendant’s argument is incorrect. The fees motion was not premature even though Defendant has taken an appeal from the Court’s order granting the anti-SLAPP motion. Despite the appeal, the Court retained jurisdiction to entertain the motion for fees. (Carpenter v. Jack in the Box Corp.

(2007) 151 Cal.App.4th 454, 461 [appeal does not divest court of jurisdiction to address fees and costs, with is a collateral matter not affected by the order from which an appeal is taken].)

The motion is denied in its entirety.

No oral argument will be permitted.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or other notice is required.