SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF LOS ANGELES ? NORTH DISTRICT
VERTIGO REAL ESTATE HOLDINGS, )
) Case Number 14UA2745
Plaintiff, )
) STATEMENT OF DECISION
V )
) Date of Hearing:
PACIFIC SURGICAL AND LASER ) September 1, 2016
INSTITUTE, et. al., ) Dept. A-11
) Judge Randolph A. Rogers
Defendants )
____________________________________)
The Court bases the Order After Hearing of this date upon the following Statement of Decision:
1. The present case originates from a commercial unlawful detainer suit filed by Plaintiff Vertigo Real Estate Holdings, L.P. (?Plaintiff?). The Complaint alleges that Plaintiff and Defendants Pacific Surgical and Laser Institute (?Pacific Surgical?), Julian Omidi (?Omidi?), and Golden State Practice Management, LLC (?Golden State) entered into an oral month-to-month lease prior to July 2014. All Defendants allegedly defaulted on their rent. A 3-day notice to pay rent or quit was served on September 2, 2014; the default was not cured, nor was the property vacated. Plaintiff filed the present suit on November 5, 2014. Pacific Surgical and Golden State filed their Answer on November 19, 2014.
2. In the interim, Pacific Surgical and Golden State vacated the property, converting the present action into a suit for civil damages as stated in the Complaint. Discovery ensued.
3. Omidi was purportedly served by substitute service on November 7, 2014. No Answer has ever been filed by Omidi, nor has he made any general appearance. On May 19, 2016, default was entered against Omidi at Plaintiff?s request.
4. On June 6, 2016, Omidi filed a motion to quash service, and for relief from default. By Order dated July 19, 2016, the Court denied the motion to quash and granted Omidi?s motion to set aside his default. His Answer was deemed filed as of the date submitted. The Court further continued the July 29, 2016, trial date to December 9, 2016, for a court trial. The parties waived notice.
5. On July 29, 2016, Omidi filed the motion for reconsideration because he contends that he was not served; was not present on the premises such the substitute service could be affected; and was unaware of the Summons served was for an unlawful detainer. Omidi argues that reconsideration is appropriate because Ms. Iturralde was not available to provide testimony or a declaration for the motion to quash on May 30, 2016. Omidi then asserts that the motion is accompanied by the Declaration of Yvonne Iturralde, who Omidi was able to locate within the last two days of July 29, 2016, and argues that the Declaration furnishes evidence that justifies reconsideration.
6. Plaintiff filed its Opposition on August 19, 2016, arguing that the reconsideration motion is frivolous and without basis. Plaintiff first argues that the evidence furnished by Omidi fails to establish that service was not properly effected, then argues that no Declaration is included with the motion. Plaintiff also notes that a proof of service enjoys a rebuttable presumption of validity; that Omidi was aware of the lawsuit and is merely seeking to delay this suit; and that sanctions should be awarded.
7. 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. ?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.
8. In seeking reconsideration, ?the moving party must provide a satisfactory explanation for the failure to produce that evidence at an earlier time.? Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246, 255. ?[F]acts of which the party seeking reconsideration was aware at the time of the original ruling are not ?new or different.?? In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468. Further, a fact is not a ?new? fact if it could have been discovered with due diligence. See People v. Safety National Casualty Corp. (2010) 186 Cal.App.4th 959, 974. The standard applied to newly discovered facts or evidence ?can only be described as a strict requirement of diligence.? Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.
9. Despite repeated appeals to an Iturralde Declaration, the motion includes no such declaration. Instead, Omidi merely submits yet another declaration by Brian Oxman. This declaration references alleged statements made by Iturralde which Oxman says he is personally aware is true. Oxman previously submitted declarations to support Omidi?s motion to quash. No information furnished by Oxman is a new fact or evidence. The only new evidence would be Iturralde?s Declaration, which Omidi has not provided. A motion for reconsideration is not a procedural mechanism for attorneys to re-litigate a motion that failed because the declarations they prepared were insufficient. A party should present all relevant evidence in support of his or her motion, rather than submit the bare minimum to get a hearing, wait for the Court to identify the evidentiary issues, and then tactically seek reconsideration by reformulating its evidence to address those problems. This is both unfair to the party opposing the motion, and is a waste of judicial resources.
10. Having failed to present any new evidence, Omidi?s motion does not furnish an adequate basis for reconsideration.
11. Accordingly, the motion for reconsideration is DENIED.
SO ORDERED AND ADJUDGED this the ______ day of September, 2016.
_____________________________
RANDOLPH A. ROGERS, JUDGE