Case Number: BC569359??? Hearing Date: January 04, 2017??? Dept: 51
Background
According to the allegations, on September 6, 2012, the Markoffs entered into a real estate purchase agreement with the Sparks. Kathy Macias, a short sale and foreclosure consultant, represented the Sparks and negotiated the short sale terms with BOA. On December 4, 2012, BOA ?verbally? indicated to Macias that it would consent to the short sale if the Markoffs increased their offer. On December 10, 2012, the Markoffs agreed and signed a written residential purchase agreement addendum. On December 19, 2012, BOA indicated to Macias that it will not consider an offer from the Markoffs. On January 14, 2013, Schnieders, one of BOA?s vice presidents, published two letters, one to Steven Markoff and the other to Jadwiga Markoff, stating that BOA will no longer accept mortgage transactions in which the Markoffs were involved, because of collusion. BOA?s letter, however, was based on an inadequate investigation. On January 16, 2013, the Markoffs read each others? letters. On May 29, 2014, plaintiff read the letters and first discovered defendants had accused him of criminal conduct.
On January 14, 2015, plaintiff filed a complaint against BOA and Schneiders for (1) breach of contract, (2) negligence, (3) intentional interference with contractual relations, (4) intentional interference with prospective economic advantage, (5) negligent interference with prospective economic advantage, (6) defamation, and (7) false light.
On August 3, 2016, the Court ruled on defendants? motion for judgment on the pleadings, granting it without leave, except that it was granted with leave on the first cause of action.
On August 30, 2016, plaintiff filed the first amended complaint for breach of contract.
On November 10, 2016, the Court sustained defendants? demurrer to the first amended complaint without leave. On November 28, 2016, the Court entered a judgment of dismissal.
On November 23, 2016, plaintiff filed this opposed motion for reconsideration of the order sustaining defendants? demurrer. The Court considered the papers submitted and DENIES the motion as follows.
Motion for Reconsideration Standard
?A motion for reconsideration may only be brought if the party moving for reconsideration can offer ?new or different facts, circumstances, or law? which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion ?. A motion for reconsideration will be denied absent a strong showing of diligence.? Forrest v. State of Calif. Dept. of Corps. (2007) 150 Cal.App.4th 183, 202; Baldwin v. Home Sav. of Am. (1997) 59 Cal.App.4th 1192, 1199 (noting that 1992 amendment to Code of Civil Procedure section 1008 tightened the diligence requirements).
A ?strict requirement of diligence? is providing a ?satisfactory explanation for failing to provide the evidence earlier.? Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690. For example, in Garcia, the court denied a motion for reconsideration on diligence grounds where it found ?[t]he information consisting of Garcia?s own declared knowledge was obviously always within his possession, and no satisfactory explanation appeared for not bringing it out earlier. The matters it addressed had been placed in issue by the motion, and there is no showing Garcia had been unavailable to counsel anytime during preparation of the initial opposition.? Ibid. (emphasis in original).
?A motion to reconsider is not valid if it is filed after the final judgment is signed.? Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048; Ramon v. Aerospace Corp. (1996) 50 Cal.App.4th 1233, 1236 (referring to ?Ramon?s section 1008 motion filed after entry of judgment ?.?); Betz v. Pankow (1993) 16 Cal.App.4th 931, 937-938 (explaining, ?a motion for reconsideration may only be considered before final judgment is entered and while the case is still pending in the trial court. [Citations.] Because appellant is attempting to vacate a judgment, rather than an interim ruling, section 1008 relief is unavailable.? (citations omitted)).
Analysis
Here, the Court signed the judgment of dismissal on November 28, 2016. The proposed judgment was served on November 10, 2016 (per its proof of service) and was received at the clerk?s window on November 14, 2016 (per a date stamp on the judgment). The Court held it without its being objected to for ten court days from service, and, absent objection, the clerk gave notice of the signed judgment on November 28, 2016. BOA gave notice of the judgment on December 1, 2016, and filed its notice on December 2, 2016. Meanwhile, plaintiff filed this motion on November 23, 2016, which was the court day before the judgment was signed. The motion is directed to the demurrer ruling, not the entry of judgment. Because judgment has been entered, the Court lacks jurisdiction to consider this motion. E.g., APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176. (If plaintiff intended the filing of the motion for reconsideration to actually alert the Court to refrain from signing the judgment, plaintiff should note the reality that, under current practices, the clerk would not have scanned the document such that it is available in the electronic docket images for approximately two or three court days, and the Court would not receive a paper copy of the document from the clerk?s office for about that time.)
Even if the Court has jurisdiction, the motion fails to satisfy section 1008?s requirements.
Plaintiff identifies the ?different facts? as ?the existence of a writing which confirmed the terms of BOA?s counter offer to the Plaintiffs. The ?different facts? also include the allegation that the counter offer is an agreement pursuant to BOA?s Short Sale Guide for Agents.? MOT 5:13-16. The facts are neither new nor different. Plaintiff in this litigation has been faced with the facts that (1) the purchase agreement he signed with with the Markoffs and not BOA, and (2) that agreement warned him that BOA had no obligation to approve the short-sale loan. Thus, plaintiff — to maintain his claim against BOA — has consistently alleged facts and circumstances surrounding the agreement and counteroffer that occurred in or around November and December 2012. See Complaint ?? 9-11; FAC ?? 13, 14. The proposed new allegations refer to facts occurring in December 2012. Killian Decl. ? 2, Exh. A, Proposed SAC ?? 28-33. Plaintiff has been attempting to allege an independent contract with BOA that is sufficiently untethered to the purchase agreement with the Markoffs that it is liberated from that contract?s warnings.
In this motion, the argument seems to be an attempt to better support the previously advanced idea that the acceptance of the counteroffer formed a new contract that is not restricted by the caveats in the written contract and those that came with the counteroffer itself. In its demurrer ruling, the Court relied in part on the counteroffer?s caveat that senior management could decline or change the terms of the transaction; as such, there would be no breach of contract when BOA declined the transaction after ?executive review.? Here, even Exhibit B to plaintiff?s current motion once again states that ?[c]ounter offer acceptance is subject to senior management approval. . . .?
Concerning the diligence requirement, plaintiff submitted evidence for the demurrer hearing, in conjunction with a declaration from counsel, as late as November 8, 2016, after filing an opposition to the demurrer on October 3, 2016. While the moving papers and counsel?s declaration allude to the evidence being discovered in October 2016, the declaration says nothing about why plaintiff failed to propose or present these facts before the Court at or before the hearing on the demurrer, or why plaintiff failed to discovery the evidence sooner. Regarding the strict requirement of diligence, the showing is far too vague to be credited as demonstrating requisite diligence.
Therefore, plaintiff fails to carry his burden, even if the Court had jurisdiction post-judgment..
To the extent plaintiff requests leave to file the proposed second amended complaint, a motion for reconsideration is an improper vehicle.
The motion is DENIED. Defendants? counsel to give notice.