Case Number: MC025345??? Hearing Date: April 28, 2016??? Dept: A11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT
RICHARD BURCH, JR., )
) Case Number MC025345
Plaintiff, )
) ORDER AFTER HEARING
v. )
) Date of Hearing:
J. SOTO, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
___________________________________)
Plaintiff?s motion for reconsideration came on for hearing on April 28, 2016. Plaintiff Richard Burch, Jr. appeared through his counsel of record, ________________. Defendants appeared through their counsel of record, ________________.
The Court, having received and reviewed the pleadings of record and evidence submitted and having considered argument of counsel, hereby ORDERS:
The motion for reconsideration is DENIED.
SO ORDERED this the _____ day of April, 2016.
______________________
RANDOLPH ROGERS,
JUDGE
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT
RICHARD BURCH, JR., )
) Case Number MC025345
Plaintiff, )
) STATEMENT OF DECISION
v. )
) Date of Hearing:
J. SOTO, et al., ) April 28, 2016
) Dept. A-11
Defendants. ) Judge Randolph A. Rogers
____________________________________)
The Court bases the Order After Hearing of this date upon the following Statement of Decision:
1. The present case arises out of a prison inmate?s claims against prison officials.
2. Plaintiff, Richard Burch, Jr. (?Plaintiff?), is an inmate in a prison operated within California?s penal system. Plaintiff?s mobility is impaired, and he walks with the assistance of a wooden cane. On November 24, 2014, Plaintiff was assaulted by another inmate, Vasques, who was permitted to keep and use what Plaintiff alleges to be a stainless-steel cane, and sustained injuries as a result.
3. Plaintiff further alleges that the California Department of Corrections and Rehabilitation (?CDCR?) policy requires staff to be present at all times, and that ?level IV inmates? cannot possess metal canes. Vasques is alleged to have a history of assault on other inmates, and was permitted to keep his metal cane. Cane availability is alleged to be subject to the decision of Defendant Finander, the chief medical doctor of the facility. Plaintiff also alleges that Defendants Soto, Nunuez, and Diaz, the warden, facility captain, and lieutenant at the facility, failed to train Defendant Tucker, the sergeant.
4. Plaintiff exhausted his administrative appeals and submitted claims to the Victim Compensation Board, which were rejected. Plaintiff filed his Complaint on March 26, 2015. Following a sustained demurrer, Plaintiff filed his First Amended Complaint (?FAC?) on August 21, 2015. The demurrer to the FAC was sustained with leave to amend by Order dated 10/6/15, and Plaintiff filed his Second Amended Complaint (?SAC?) on October 30, 2015.
5. Defendants filed their demurrer to the SAC on November 17, 2015, presenting many of the same arguments previously presented. The verbatim nature of large portions of the demurrer has caused a few minor inaccurate omissions, such as the failure to acknowledge the allegation that canes had to be approved by Finander. SAC at ?23. Defendants also note that the fourth cause of action for assault and battery appears directed only at Vasques. In addition, the SAC names a new Defendant, A. Ojeda, but there is no indication that Plaintiff has attempted to serve Ojeda. Defendants then recite verbatim their arguments stated in the demurrer to the FAC, and add one minor paragraph that there are no clear allegations concerning Finander.
6. By Order dated 12/29/15, the Court sustained Defendants demurrer to the SAC without leave to amend. Notice of the ruling was served by mail on December 30, 2015. Judgment was then entered on January 11, 2016.
7. On February 14, 2016, Plaintiff served a motion for rehearing, which was filed with the Court on February 22, 2016. Plaintiff contends that the Court failed to entertain his allegations set forth in the SAC, and asserts that Defendants? failure to comply with departmental policy constitutes cruel and unusual punishment. The motion is, in substance a motion for reconsideration, and will be addressed as such.
8. On March 23, 2016, Defendants filed their Opposition to Plaintiff?s motion. Defendants note that the motion is untimely pursuant to CCP ?1008, that the Court lacks jurisdiction to hear the motion, and no new facts or law were presented to support the motion.
9. Plaintiff filed an ?Opposition to Defendants Opposition? (?Reply?) on April 6, 2016, contending that he waited for the final judgment before filing his motion, that the Court has jurisdiction to hear the motion, and that there are new and different facts contained within the SAC.
10. Discussion ? Code of Civil Procedure section 1008(a) states that ?[w]hen an application for an order has been made to a judge, or to a court, and refused in whole or in part, . . . 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.? ?[A] motion for reconsideration may only be considered before final judgment is entered and while the case is still pending in the trial court.? Betz v. Pankow (1993) 16 Cal.App.4th 931, 937. A trial court is without power to consider a motion for reconsideration after judgment. See APRI Insurance Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181-182.
11. ?The overriding purpose of Code of Civil Procedure section 1008 is to prevent duplicative motions.? UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367. Although titled a motion for re-hearing, Plaintiff?s argument is essentially that the Court failed to sufficiently consider the allegations in the SAC, failed to sufficiently consider Plaintiff?s oral arguments presented at the hearing, and failed to adequately consider the merits of the demurrer to the SAC. Stated differently, Plaintiff asks the Court to reconsider its ruling on Defendants? demurrer to the SAC, based on the same facts and moving paperwork previously submitted and considered, and to either grant Plaintiff a second hearing, or a different ruling. This is exactly the type of request CCP ?1008 was enacted to address.
12. The Court first notes that ?entry of judgment divests the trial court of authority to rule on a motion for reconsideration.? Safeco Insurance Co. of Illinois v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482. See also Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 192 (?A trial court may not rule on a motion for reconsideration after entry of judgment?); Betz v. Pankow (1993) 16 Cal.App.4th 931, 937 (?[A] motion for reconsideration may only be considered before final judgment is entered and while the case is still pending in the trial court?). As noted above, judgment was entered in this case on January 11, 2016. The Court thus lacks jurisdiction to consider Plaintiff?s motion.
13. Moreover, even if the Court had jurisdiction to hear the motion, it would be untimely under CCP ?1008(a). A motion for reconsideration must be brought within 10 days after service of written notice of entry of the order. The order was signed and filed on December 29, 2015, and Defendants filed and served a Notice of Ruling on December 30, 2015. Plaintiff did not file his motion until February 22, 2016. The motion was not served until February 14, 2016. As such, the motion would have been untimely.
14. Finally, a motion for reconsideration must be premised on new or different facts, circumstances, or law. CCP ?1008(a). Plaintiff?s motion merely asks the Court to reconsider all the previously filed pleadings and documents, which the Court considered in ruling on the demurrer to the SAC. Plaintiff disagrees with the Court?s ruling and reading of the facts and law applicable to the motion. This does not qualify as ?new? or ?different? pursuant to the statute. As such, Plaintiff has not demonstrated a proper basis for reconsideration.
15. Thus, even if the Court had jurisdiction to hear the motion, it is substantively unavailing.
16. Accordingly, the motion for reconsideration is DENIED.
SO ORDERED AND ADJUDGED this the ______ day of April, 2016.
_____________________________
RANDOLPH A. ROGERS, JUDGE