Case Number: 19STLC06542 Hearing Date: October 08, 2020 Dept: 26
Hernandez v. Werksman, et al.
MOTION FOR RECONSIDERATION
(CCP § 1008)
TENTATIVE RULING:
Plaintiff Ricardo Hernandez’s Motion for Reconsideration is DENIED.
ANALYSIS:
On July 15, 2019, Plaintiff Ricardo Hernandez (“Plaintiff”) filed the instant action for breach of retainer agreement and fraud against Defendant Mark J. Werksman (“Defendant”), his former attorney. The Complaint alleges that “[o]n or about 11/26/07” the parties entered into an oral retainer agreement whereby Defendant was to represent Plaintiff on Case No. VA103436 and at trial until judgment, in exchange for payment. (Compl., pp. 1-2.) Defendant allegedly breached the agreement by failing to represent Plaintiff and instead, delegating the representation to another attorney. (Id. at p. 2, ¶2.) That attorney then withdrew as counsel. (Ibid.)
On February 13, 2020, the Court sustained Defendant’s Demurrer to the Complaint without leave to amend. On March 9, 2020, Plaintiff filed the instant Motion for Reconsideration. Defendant filed an opposition on September 25, 2020.
Discussion
The Motion is not brought pursuant to any legal authority as required by Cal. Rules of Court, Rule 3.1113. “The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, Rule 3.1113, subdivision (b).)
Even if the Court were to assume the Motion is brought pursuant to Code of Civil Procedure section 1008, Plaintiff has not shown a basis for reconsideration. Code of Civil Procedure section 1008, subdivision (a) states:
“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.”
(Code Civ. Proc., § 1008, subd. (a).) Although timely served on February 28, 2020, the Motion was not timely filed with the Court until March 9, 2020. March 9, 2020 was 20 days after the service of the ruling on demurrer. (Notice of Ruling Re Defendant’s Demurrer, filed 2/18/20, Proof of Service.)
Finally, the Motion is not based on new or different facts, circumstances, or law. (Motion, pp. 1-2.) Instead, the Motion reiterates the arguments Plaintiff made in opposition to the demurrer. (Ibid.) The Court lacks jurisdiction to grant the Motion for Reconsideration without the requisite showing of new or different facts, circumstances or law. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391 [“the procedural prerequisites set forth for reconsideration of orders and renewal of motions previously denied are jurisdictional as applied to the actions of parties to civil litigation.”].)
Conclusion
Therefore, Plaintiff Ricardo Hernandez’s Motion for Reconsideration is DENIED.
Defendant to give notice.