Case Name:    Denis Flynn vs Ralph Flynn et al

Case No.:        16CV292470

On March 16, 2017, the Court denied Plaintiff’s motion for summary judgment.  Plaintiff has now brought a motion for “reconsideration” and to “renew” the motion for summary adjudication.

The motion to “renew” is DENIED, as, among other defects, the motion was not served the requisite 75 days before the hearing.  Plaintiff has provided no authority to support any claim that a summary judgment motion, by renewal or not, may be served on less than 75 days’ notice.  Any second motion for summary adjudication may be brought only on an adequate showing under section 437c(f)(2).

The motion for reconsideration is also DENIED.  Apparently aware that Plaintiff has not met the criteria for a motion for reconsideration, Plaintiff “requests that the Court reconsider its Order on the motion for summary adjudication….”


The notice of motion is clear that Plaintiff has brought a motion seeking this relief, and also makes a “request” that the Court reconsider the motion.  The memorandum of points and authorities contains no legal authorities, and the only cited legal basis for the motion, Code of Civil Procedure section 1008, is found only in the notice of motion itself.


Whatever the title, as motion or request, ultimately Plaintiff’s motion seeks reconsideration.  The title of the motion is not controlling: a motion that asks the judge to decide the some matter previously ruled on is a motion for reconsideration. (Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1577.)  It is, therefore, subject to the provisions of Code of Civil Procedure §1008. (Lennar Homes of Cal., Inc. v Stephens (2014) 232 Cal.App.4th 673, 681-682.)


Any motion for reconsideration must be made within ten days after service on the moving party of written notice of entry of the order.  (Code of Civ. Proc. §1008(a).)  This motion was not filed within the required time period.


Strict compliance with section 1008 is required. Code of Civil Procedure §1008 specifies a court’s jurisdiction with regard to applications for reconsideration of its orders and applies to all applications to reconsider any order of a judge or a court, whether the order is interim or final. (Code of Civ. Proc. §1008(e).)  A judge may not consider any application to reconsider a prior order, unless the application is made in accordance with section 1008. (Code of Civ. Proc. §1008(e).)


The California Supreme Court has rejected a moving party’s contention that on a renewed motion the moving party does not have to present new facts, but only different facts. Numerous decisions have rejected the argument that a party may merely offer anything not previously presented to the court, because this would defeat the legislature’s stated goal of reducing the number of reconsideration motions and would remove an important incentive for parties to efficiently marshal their evidence. (See Even Zohar Constr. & Remodeling, Inc. v Bellaire Townhouses, LLC (2015) 61 Cal.4th 830; California Correctional Peace Officers Ass’n v Virga (2010) 181 Cal.App.4th 30, 44-48 [moving party is responsible for advancing all correct legal theories in its original motion, so as not to burden court with repeated motions for same relief].)


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 trial. (See Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198;  Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689-690.)  Although Plaintiff claims that evidence obtained at a deposition of Defendant Ralph Flynn indicated that the declaration submitted in opposition to the motion was “fraudulent” because he testified he did not read it before he signed it, the Court finds that is not sufficient.  Defendant testified he did in fact sign it.  What is notably absent from the deposition testimony provided to the Court with this motion is any testimony by Defendant that the statements in the declaration he admittedly signed are not true (at least from his perspective).


The Court finds that Plaintiff have failed to comply with section 1008 in seeking reconsideration of the grant of summary adjudication, and has not presented any new evidence that could not have been presented with the original opposition. Plaintiff should have waited until after taking the deposition before filing the motion for summary adjudication to insure that complete information would be available.


The Court also declines to exercise its inherent authority, and denies the “request” to modify the prior order on its own motion.  “In order to grant reconsideration on its own motion, the trial court must conclude that its earlier ruling was wrong, and change that ruling based on the evidence originally submitted. Thus, our ruling does not permit parties to obtain reconsideration relying on evidence that could and should have been, but was not, presented to the court in connection with the original motion.”  (IRMO Barthold (2008) 158 Cal.App.4th 1301, 1304, emphasis in original.) The Court declines to consider any new evidence not originally submitted in opposition to the motion.