Espinoza v. Ponce CA4/1

Filed 8/18/21 Espinoza v. Ponce CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
ROSALINA ESPINOZA et al., D078096
Plaintiffs and Appellants, (Super. Ct. No. ECU000118)
v.
JOSE PONCE et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Imperial County,
Jeffrey B. Jones, Judge. Affirmed.
Law Office of Elliott Kanter and Elliott Kanter for Plaintiffs and
Appellants.
The Viviano Law Firm, Charles A. Viviano; Blain Morrison Law
Corporation and Rebecca Blain Morrison for Defendants and Respondents.
Rosalina Espinoza, Sylvia Espinoza, and Jesus Espinoza (collectively,
plaintiffs) brought a personal injury action against the Imperial Irrigation
District (IID), a government entity, and its employee, Jose Ponce (collectively,
defendants). Based on its finding that plaintiffs failed to comply with the
claim presentation requirements of the Government Claims Act (Gov. Code,
§ 910 et seq.), the trial court entered judgment in favor of the IID. Plaintiffs
filed a motion for a new trial and judgment notwithstanding the verdict,
based on what they characterized as newly discovered evidence relevant to
the submission of their claim forms under the Government Claims Act. The
trial court denied plaintiffs’ motion. After the time to appeal the judgment
had expired, plaintiffs brought a new motion—this time requesting that the
court reconsider the final judgment “on its own motion.” They again
reasserted that newly discovered evidence warranted the trial court’s
reconsideration. The trial court’s order denying the latter motion is the
subject of this appeal. Because the trial court did not have the authority to
reconsider the final judgment on its own motion under the circumstances of
this case—either as an exercise of its inherent authority or pursuant to
statute—we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2017, plaintiffs were struck by a Freightliner 108 Dumpster
which Ponce was driving within the scope of his employment for the IID.1
In September 2017, an employee of plaintiffs’ former counsel mailed
certain claim forms that are required prior to initiating a lawsuit against the
1 The complaint and the answer were not included in the record on
appeal. We take these facts from portions of the record that were provided,
including the parties’ trial briefs, the claim forms, and various pleadings. In
addition, other than one citation to the trial court’s ruling, plaintiffs failed to
include any record citations in their opening and reply briefs. “California
Rules of Court, rule 8.204(a)(1)(C) requires every reference to a matter in the
appellate record be supported with a citation to the volume and page number
of the record where the matter appears. The rule applies wherever a
reference to a matter in the record appears in a brief.” (Doppes v. Bentley
Motors, Inc. (2009) 174 Cal.App.4th 967, 990.) Because plaintiffs violated
these requirements, we may disregard their arguments. (Grant-Burton v.
Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379.) We nonetheless
exercise our discretion to consider the merits of plaintiffs’ appeal. (Ibid.)
2
IID; the forms were sent to the IID’s attention at a post office box in El
Centro, California (P.O. Box 3190).2 In November 2017, plaintiffs filed a
personal injury action against the defendants. After the lawsuit was filed,
plaintiffs retained their current counsel.
In defense of the lawsuit, the IID alleged it never received plaintiffs’
claim forms. The trial court bifurcated the issue of plaintiffs’ compliance with
the claim presentation requirements under the Government Claims Act.
During the bench trial, the court heard testimony from the employee of
plaintiffs’ former counsel who mailed the claim forms to the IID. She
testified she received an e-mail from the IID with an attached claim form
containing an El Centro post office box address (P.O. Box 3190). By contrast,
an employee from the IID testified that she sent the employee of plaintiffs’
former counsel an e-mail with an attached claim form containing a post office
box address in Imperial, California (P.O. Box 937).3 The original e-mail and
the attached claim form, however, were not presented to the trial court.
After hearing from plaintiffs’ witness and receiving evidence from the
parties, the trial court tentatively ruled in the IID’s favor. The court
concluded plaintiffs had failed to show by a preponderance of the evidence
that the IID sent former counsel a claim form with the El Centro address.
The trial court found plaintiffs’ failure to provide the court with the original
e-mail and attachment cast doubt on the testimony provided by former
counsel’s employee. Her testimony was further undermined by the certified
mailing of the claim forms, which showed they were delivered approximately
2 The claim presentation requirements (including submission of claim
forms) are summarized in the Discussion section (see footnote 6, post).
3 In the remainder of this opinion, we refer to P.O. Box 3190 as the El
Centro address and P.O. Box 937 as the Imperial address.
3
three months after mailing and well after the statutory time limit for
submitting the claims, and yet no follow-up was done to ascertain the
delivery status.
On November 26, 2019, the tentative ruling became final and the trial
court entered judgment against the plaintiffs. There is no indication in the
record that plaintiffs appealed the judgment.
Plaintiffs sued their former counsel for legal malpractice. During
discovery, plaintiffs issued a subpoena to the IID for the e-mails sent to
former counsel with the claim forms. The e-mails which the IID produced
demonstrated that on May 16, 2017, the IID sent former counsel an e-mail
with an attached claim form titled “Claim Form 3.2017.pdf,” which contained
the El Centro address. The IID sent another e-mail on May 31, 2017 with an
attachment also titled “Claim Form 3.2017.pdf.” The IID did not produce the
attachment to the May 31, 2017 e-mail. The IID sent an e-mail to plaintiffs’
current counsel on December 18, 2017 with an attached claim form titled
“Claim Form.pdf.” This claim form contained the Imperial address.
In February 2020, plaintiffs moved for a new trial under Code of Civil
Procedure section 656, or in the alternative, a judgment notwithstanding the
verdict.4 Plaintiffs contended that after analyzing the metadata from the
e-mails the IID sent to former counsel, plaintiffs discovered the IID had
provided former counsel with the El Centro address. In other words,
plaintiffs obtained the El Centro address from the IID itself and they sent
their claim forms to that address. Plaintiffs supported the motion with the
e-mail metadata. In plaintiffs’ reply, current counsel provided a declaration,
explaining he was unaware metadata for e-mails existed and only learned of
4 All subsequent statutory references are to the Code of Civil Procedure
unless otherwise indicated.
4
it after the trial court’s November 2019 ruling. Specifically, counsel stated:
“On the [b]ifurcated trial [date], I was not aware that there would be meta
data showing if indeed what was being offered was in actuality accurate. . . .
I did not even know where to look for that meta data on and [sic] email. It
was only after the trial and discussions with other persons did I learn how to
look for it. It was then that I saw the meta data from [plaintiffs’ former
counsel] that showed the claim form with the [El Centro address] came from
the IID.”
After a hearing, the trial court denied plaintiffs’ motion. As to the
motion for a new trial, the trial court found the metadata evidence required
expert testimony to verify the evidence had not been manipulated, which
plaintiffs failed to provide. The trial court was also unconvinced the e-mail
metadata could not have been discovered with reasonable diligence prior to
the bench trial, and thus plaintiffs failed to meet the requirements for a new
trial.
Nearly nine months after entry of judgment, plaintiffs filed a “motion
for court’s own motion for reconsideration,” requesting that the trial court
reconsider its final judgment on its own motion. Plaintiffs contended the trial
court was authorized to reconsider its prior ruling on its own motion at any
time and for any purpose. Plaintiffs further contended reconsideration was
warranted and they should be relieved of the claim presentation
requirements, because the e-mails produced during the legal malpractice suit
showed the IID had withheld evidence, committed perjury, and lied to the
trial court. To support the motion, plaintiffs provided current counsel’s
declaration, along with the e-mails and attachments the IID produced during
the legal malpractice suit and the shipping label former counsel created for
the claim forms.
5
In opposition, the defendants contended plaintiffs’ motion was untimely
because it was not filed within 10 days after entry of judgment. Defendants
further contended there was no good cause to support reconsideration,
because the motion did not present any new arguments or evidence not
previously presented to the trial court. Defendants requested the trial court
take judicial notice of the complaint filed in plaintiffs’ legal malpractice suit.
Plaintiffs contended in reply that the trial court was authorized to
bring its own motion for reconsideration at any time and for any purpose, and
their motion was therefore timely. Plaintiffs also contended the IID e-mails
were new evidence warranting the trial court to bring its own motion for
reconsideration to correct its erroneous ruling.
At the hearing, the trial court stated its intention to deny plaintiffs’
motion. The trial court found its inherent authority to revisit a prior ruling
only applied to interim orders and not final judgments. The trial court also
noted that, where a trial court granted reconsideration on its own motion,
those cases involved a prior order that was incorrect when the trial court
originally ruled. According to the trial court, a motion for reconsideration
based on consideration of new evidence must be presented under the
reconsideration statute.5 After hearing argument, the trial court confirmed
its tentative ruling denying plaintiffs’ motion. Plaintiffs appealed.
5 The court explained: “If you go through each and every case where the
[c]ourt has found to have inherent authority to reconsider an interim ruling,
in all of those cases the [c]ourt was persuaded that the order was incorrect
when it was made based on the state of affairs at that time and not based on
new evidence or new considerations that weren’t presented at the time. [¶]
It is my position that under [section] 1008, if the [c]ourt needs to look at
something that happened after the hearing, if you will, or something that
wasn’t presented at the hearing or some other state of affairs, then [section]
1008 specifies the jurisdiction of the [c]ourt.”
6
DISCUSSION
Plaintiffs contend they obtained new information demonstrating the
IID “lied to, grossly misrepresented, and fraudulent[ly] provided false
testimony and evidence” relating to their Government Claims Act forms, and
the outcome of their case would have been “completely different” if the trial
court had this information when it ruled in November 2019.6 Plaintiffs
contend that, because the “trial court has the authority to reconsider any
prior final judgment,” the court erred when it denied plaintiffs’ “[m]otion for
the [c]ourt’s own [m]otion for [r]econsideration.”
Whether it is construed as a request for the trial court to exercise its
inherent authority to reconsider its prior ruling, or instead as a
reconsideration or renewal request pursuant to section 1008, plaintiffs’
motion lacks merit and we reject plaintiffs’ claims of error on appeal.
A. Governing Legal Principles and Standard of Review
Section 1008, subdivision (a) authorizes a party to seek reconsideration
of an adverse order “based upon new or different facts, circumstances, or
law.” Similarly, pursuant to section 1008, subdivision (b), “[a] party who
originally made an application for an order which was refused in whole or
part . . . may make a subsequent application for the same order upon new or
different facts, circumstances, or law” set forth in an accompanying affidavit.
6 In general, before a complaint for money or damages may be filed
against a public entity on a cause of action relating to personal injuries, the
plaintiff must present a written claim for damages to the public entity, and
the claim must be acted upon or deemed rejected. (Gov. Code, §§ 900.4 [local
public entity includes a district], 905, 910, 945.4.) A written claim for
personal injury must be presented to the public entity no later than six
months after the accrual of the cause of action. (Id., § 911.2, subd. (a).) A
plaintiff who fails to timely comply with the prelawsuit claim requirements is
barred from bringing an action against the public entity. (City of Stockton v.
Superior Court (2007) 42 Cal.4th 730, 734.)
7
(See Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 362
[“Section 1008 describes applications for reconsiderations of court orders
(§ 1008, subd. (a)) and renewals of previous motions (§ 1008, subd. (b)).”].)7
The moving party must “show diligence with a satisfactory explanation for
not presenting the new or different information earlier . . . .” (Even Zohar
Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015)
61 Cal.4th 830, 833 (Even Zohar).)
Further, “[i]f a court at any time determines that there has been a
change of law that warrants it to reconsider a prior order it entered, it may
do so on its own motion and enter a different order.” (§ 1008, subd. (c); see
Phillips v. Sprint PCS (2012) 209 Cal.App.4th 758, 768 (Phillips) [“ ‘[W]hen a
trial court concludes there has been a change of law that warrants
reconsideration of a prior order, it has jurisdiction to reconsider and change
its order’ ”].) Section 1008, subdivision (e), provides in pertinent part: “This
section specifies the court’s jurisdiction with regard to applications for
reconsideration of its orders and renewals of previous motions, and applies to
all applications to reconsider any order of a judge or court, or for the renewal
of a previous motion . . . . No application to reconsider any order or for the
renewal of a previous motion may be considered by any judge or court unless
made according to this section.”
“Even without a change of law, a trial court has the inherent power to
reconsider its prior rulings on its own motion at any time before entry of
judgment.” (State of California v. Superior Court (Flynn) (2016)
4 Cal.App.5th 94, 100.) As our Supreme Court explained in Le Francois v.
7 A reconsideration motion under section 1008, subdivision (a) must be
made within 10 days after service of notice of entry of the order. (§ 1008,
subd. (a).) The 10-day time limitation does not apply to a party’s renewed
motion under section 1008, subdivision (b). (§ 1008, subd. (b).)
8
Goel (2005) 35 Cal.4th 1094 (Le Francois), while section 1008 limits “the
parties’ ability to file repetitive motions,” it does “not limit the court’s ability,
on its own motion, to reconsider its prior interim orders so it may correct its
own errors.” (Le Francois, at p. 1107.)
We review de novo “claims that the trial court incorrectly interpreted
and applied statutory and constitutional law.” (In re Marriage of Spector
(2018) 24 Cal.App.5th 201, 207 (Spector).) We review a trial court’s ruling on
a motion for reconsideration under the abuse of discretion standard. (New
York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212 (New York
Times).)
B. Court’s Inherent Authority to Reconsider Prior Rulings
Relying on Le Francois, plaintiffs contend a trial court may reconsider
any prior ruling, interim or final, on its own motion. Although trial courts
have the inherent authority to reconsider certain rulings in certain
circumstances, Le Francois does not assist plaintiffs here. Plaintiffs
effectively seek to require the trial court to exercise its sua sponte authority,
and they request that the court reconsider a final judgment after the time to
appeal that judgment has long since expired. As we discuss, there is no
support for plaintiffs’ position.
In Le Francois, the trial court denied defendants’ motion for summary
judgment.8 (Le Francois, supra, 35 Cal.4th at p. 1096.) Over a year later,
some of the defendants moved for summary judgment again on the same
grounds, and the trial court granted the motion. (Ibid.) The California
Supreme Court granted review to address a conflict among the Courts of
Appeal regarding whether section 1008, as well as a similar provision in the
8 An order denying summary judgment is a nonappealable order. (Doran
v. Magan (1999) 76 Cal.App.4th 1287, 1294.)
9
summary judgment statute, limits the court’s inherent power to reverse one
of its earlier rulings. (Id. at pp. 1099-1101.) Our Supreme Court concluded
that although a party’s ability to bring a motion for reconsideration is limited
by the reconsideration statutes, a trial court has the inherent authority to
correct a judicial error in an interim order, as long as the court gives the
parties notice that it intends to reconsider its ruling and a reasonable
opportunity to litigate the question. (Id. at pp. 1096-1097.)
Other courts similarly have held that a trial court retains the inherent
authority, on the court’s own motion, to reconsider a prior interim ruling.
(See, e.g., Phillips, supra, 209 Cal.App.4th at p. 768 [addressing whether trial
court has the authority to reconsider a prejudgment appealable order, and
concluding the court had the inherent authority to revisit its prior interim
order, based on an intervening change of law, “at any time prior to entry of
judgment”]; Boschetti v. Pacific Bay Investments Inc. (2019) 32 Cal.App.5th
1059, 1064, 1070 [trial court reconsidered its earlier order staying the action
based on the court’s own realization that its ruling was erroneous]; Cox v.
Bonni (2018) 30 Cal.App.5th 287, 312-313 [affirming trial court’s
reconsideration on its own motion of a prior order vacating an arbitration
award].) Here, the trial court did not conclude on its own that one of its prior
interim rulings was incorrect and needed to be revisited. Instead, plaintiffs
tried to persuade the court to revisit a prior ruling by filing their “motion for
10
the court’s own motion for reconsideration.”9 However, plaintiffs cite no
authority which compels a trial court to reconsider its prior ruling on its own
motion, even when prompted to do so by one of the parties before it. To the
contrary, “[t]he court need not rule on any suggestion that it should
reconsider a previous ruling and, without more, another party would not be
expected to respond to such a suggestion.” (Le Francois, supra, 35 Cal.4th at
p. 1108.) Thus, while parties may “suggest” to the court that it might
reconsider its ruling, they cannot force the issue as plaintiffs attempted to do
here. (Ibid.) On the facts of this case, the court did not abuse its discretion
when it declined to exercise its inherent discretionary authority to reconsider
its prior ruling.
Further, the procedural posture of the case is significant, and here, it
bars plaintiffs from obtaining the relief they seek. As previously discussed,
the trial court entered judgment in the defendants’ favor in November 2019,
and plaintiffs failed to appeal from that judgment. Instead, approximately
9 We need not address whether plaintiffs’ written motion was the proper
procedural mechanism for asking the trial court to reconsider its ruling. Le
Francois explained that “[u]nless the requirements of section . . . 1008 are
satisfied, any action to reconsider a prior interim order must formally begin
with the court on its own motion.” (Le Francois, supra, 35 Cal.4th at
p. 1108.) However, the Le Francois court also found it does “not matter
whether the ‘judge has an unprovoked flash of understanding in the middle of
the night’ [citation] or acts in response to a party’s suggestion. If a court
believes one of its prior interim orders was erroneous, it should be able to
correct that error no matter how it came to acquire that belief.” (Ibid.; see In
re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469 [“[I]f a court believes
one of its prior orders was erroneous, it may correct that error no matter how
it came to acquire that belief.”]; accord, In re Marriage of Barthold (2008)
158 Cal.App.4th 1301, 1309 (Barthold) [“Thus, it is clear that a party’s filing
of a motion for reconsideration in violation of the reconsideration statutes
does not erect a permanent, insurmountable barrier to reconsideration by the
trial court on its own motion.”].)
11
nine months later, plaintiffs filed their “motion for the court’s own motion” for
reconsideration,10 contending new evidence demonstrated they complied
with the Government Claims Act, or they should be relieved from the Act’s
claim presentation requirements.
Plaintiffs cite no authority, and we are aware of none, that permits the
trial court to reconsider a final judgment brought after the time to appeal
that judgment has expired, as was the case here. The California Supreme
Court in Le Francois expressly cautioned that a court’s inherent authority “to
reconsider interim orders does not necessarily apply to final orders, which
present quite different concerns.” (Le Francois, supra, 35 Cal.4th at p. 1105,
fn. 4.) Similarly, Barthold held that the trial court may reconsider a prior
final order on the court’s own motion where the time to appeal had not
expired. (Barthold, supra, 158 Cal.App.4th at pp. 1312, 1313, fn. 9.) The
Barthold court noted, however, that “this appeal does not present, and we
therefore do not decide, the issue whether a trial court can reconsider an
appealable order on its own motion after the time to appeal from that order
has expired. This circumstance may well have been the issue the [California]
Supreme Court had in mind when it indicated in Le Francois that ‘. . . final
orders . . . present quite different concerns’ from interim orders.” (Id. at
p. 1313, fn. 9; see Spector, supra, 24 Cal.App.5th at p. 215 [agreeing with
Barthold that a trial court’s inherent authority to reconsider prior rulings
may extend to final orders as long as the time for appeal has not yet run].)
The trial court did not err in concluding it lacked the discretionary
authority to reconsider its prior ruling on its own motion. Plaintiffs asked
the trial court to “bring its own motion” to reexamine the November 2019
10 Plaintiffs also filed a prior motion for a new trial, or in the alternative a
motion for judgment notwithstanding the verdict.
12
judgment in favor of the IID.11 “ ‘A court may reconsider its order granting
or denying a motion and may even reconsider or alter its judgment so long as
judgment has not yet been entered. Once judgment has been entered,
however, the court may not reconsider it and loses its unrestricted power to
change the judgment.’ ” (APRI Ins. Co. S.A. v. Superior Court (1999)
76 Cal.App.4th 176, 181-182; see also Ballona Wetlands Land Trust v. City of
Los Angeles (2011) 201 Cal.App.4th 455, 479 [“The entry of judgment
ordinarily terminates a trial court’s jurisdiction to rule on the merits of a
case, apart from ruling on a new trial motion, a motion to vacate the
judgment or a similar motion.”]; accord, People v. DeLouize (2004) 32 Cal.4th
1223, 1231 (DeLouize).)
Precluding the plaintiffs from challenging the merits of the judgment
itself—through the guise of asking the court to bring its own motion for
reconsideration—is also consistent with principles of finality. As our
Supreme Court explained in DeLouize, finality in judicial decisions is
necessary “to preserve confidence in the integrity of judicial procedures and
to avoid the delays and inefficiencies associated with repeated examination
and relitigation of the same facts and issues.” (DeLouize, supra, 32 Cal.4th at
p. 1232.) Plaintiffs had an opportunity to present evidence related to their
compliance with the Government Claims Act at the bench trial, during which
the trial court received evidence and heard testimony from plaintiffs’ witness.
Plaintiffs had another chance to present evidence on the Government Claims
Act issue through a motion for a new trial, and the trial court conducted a
11 It is clear that plaintiffs were seeking to revisit the merits of the
judgment itself. They asked that the court order that “[t]he [c]ourt will bring
its own motion to reconsider its ruling dated November 26, 2019,” which was
the judgment issued by the court following the bench trial on plaintiffs’
compliance with the Government Claims Act.
13
hearing on that request as well. Given plaintiffs’ numerous opportunities to
fully vindicate their claims prior to bringing their motion for the court’s own
motion for reconsideration, they are bound by the final judgment.12 Allowing
reconsideration here would incentivize parties to seek out new evidence after
a final judgment is entered and the time to appeal has expired. And it would
violate principles of finality to require the parties and the court to expend
additional resources on an issue that has already been fully litigated. (See
DeLouize, at p. 1232 [recognizing that “ ‘[e]ndless litigation, in which nothing
was ever finally determined, would be worse than occasional miscarriages of
justice . . . .’ [Citations.]”].)
In sum, the trial court did not err in declining to follow plaintiffs’
“suggestion” to exercise its inherent authority to reconsider its prior ruling
relating to plaintiffs’ compliance with the Government Claims Act. Although
a trial court possesses the inherent authority to reconsider certain prior
rulings on the court’s own motion, nothing compels the court to act on a
party’s suggestion that it exercise such discretion. There is no authority
supporting the plaintiffs’ position that the trial court could reconsider the
merits of the challenged final judgment after the time to appeal had expired.
Even if the court had such discretionary authority, plaintiffs have not
established an abuse of discretion because principles of finality support the
court’s decision denying plaintiffs’ requested relief in this case.
12 The trial court also held that any exercise of its inherent authority to
reconsider a prior ruling would have to be “based on the state of affairs at
that time and not based on new evidence or new considerations that weren’t
presented at the time.” The parties do not address this issue in their
briefing, and it is unnecessary for us to consider it. (Cf. Barthold, supra,
158 Cal.App.4th at p. 1314 [“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”].)
14
C. Motion for Reconsideration or Renewal Under Section 1008
“ ‘The name of a motion is not controlling, and, regardless of the name,
a motion asking the trial court to decide the same matter previously ruled on
is a motion for reconsideration under . . . section 1008.’ ” (J.W. v. Watchtower
Bible & Tract Society of New York, Inc. (2018) 29 Cal.App.5th 1142, 1171;
accord, Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th
673, 681 [“The motion [for clarification], despite its label, was in substance a
motion for reconsideration.”].) Here, plaintiffs asked the trial court to decide
the same matter previously ruled on—plaintiffs’ compliance with the claim
presentation requirements of the Government Claims Act. To the extent
plaintiffs’ motion is deemed to be a motion for reconsideration under
section 1008, it lacks merit.13
First, the trial court did not have the ability to consider a statutory
motion for reconsideration given the procedural posture of the case.
(Marshall v. Webster (2020) 54 Cal.App.5th 275, 281 [“It is settled law that a
motion for reconsideration is ineffectual if it is filed after entry of
judgment.”]; Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker
(2016) 2 Cal.App.5th 252, 265 [“ ‘A trial court may not rule on a motion for
reconsideration after entry of judgment.’ ”].)14
13 We would also lack jurisdiction to consider an appeal from an order
denying a motion for reconsideration. (Powell v. County of Orange (2011)
197 Cal.App.4th 1573, 1576-1577; see § 1008, subd. (g) [“An order denying a
motion for reconsideration made pursuant to [section 1008,] subdivision (a) is
not separately appealable. However, if the order that was the subject of a
motion for reconsideration is appealable, the denial of the motion for
reconsideration is reviewable as part of an appeal from that order.”].)
14 A motion for reconsideration under section 1008, subdivision (a), would
also be untimely. (See fn. 7, ante.)
15
Second, plaintiffs failed to “show diligence with a satisfactory
explanation for not presenting the new or different information earlier . . . .”
(Even Zohar, supra, 61 Cal.4th at p. 833.) “ ‘Without a diligence requirement
the number of times a court could be required to reconsider its prior orders
would be limited only by the ability of counsel to belatedly conjure up a legal
theory different from those previously rejected, which is not much of a
limitation.’ ” (California Correctional Peace Officers Assn. v. Virga (2010)
181 Cal.App.4th 30, 46.) The need for a diligence requirement is evident in
this case. When ruling on plaintiffs’ motion for a new trial, the trial court
had already concluded plaintiffs failed to exercise diligence in presenting
additional evidence regarding the IID’s e-mails and attached claim forms.
Plaintiffs now contend they obtained e-mails from the IID through
discovery in a different lawsuit (a malpractice action against their former
counsel) which support their claim that the IID provided their former counsel
with the El Centro address they used when they mailed their claim forms.15
But plaintiffs failed to adequately explain why the e-mails and any attached
claim forms were a new or different fact that could not have been presented
to the trial court earlier. (See Jade K. v. Viguri (1989) 210 Cal.App.3d 1459,
1464, 1467 [affirming denial of a motion for reconsideration when moving
party “made no showing the assertedly new evidence . . . was newly
discovered [after the original hearing] or with reasonable diligence could not
have been discovered” before that hearing]; Morris v. AGFA Corp. (2006)
144 Cal.App.4th 1452, 1468 [motion for reconsideration was properly denied
15 Plaintiffs acknowledge they do not have the actual claim form attached
to the relevant e-mail they relied on to file their claim. Instead, they refer to
a claim form attached to a different e-mail, contending “reasonable analysis of
the emails leads a reasonable person to believe that the claim form[s]” are the
same.
16
where based on evidence that “could have been presented with the original
motion”].) Plaintiffs attempt to shift the burden to the IID, contending the
defendants intentionally withheld the information from the trial court. But
plaintiffs point to nothing in the record demonstrating they ever requested
this information from the IID before the bench trial. (Cf. Hollister v. Benzl
(1999) 71 Cal.App.4th 582, 584-585 [defendant’s failure to comply with
discovery request until after hearing on petition supplied ground for
reconsideration under section 1008 once the requested documents were later
produced].)16 The documents were readily available to plaintiffs during the
discovery process. (New York Times, supra, 135 Cal.App.4th at pp. 212-213
[moving party failed to show diligence where it “easily could have obtained
this evidence by deposition or declarations . . . during discovery”].) Plaintiffs
have failed to demonstrate that they could not have discovered and presented
this evidence at the prior bench trial with reasonable diligence.17
16 We are not persuaded by plaintiffs’ contention that they could not have
known “with perfect clarity” that their former counsel “failed to provide the
emails and that IID possessed the documents.” It does not require “perfect
clarity” to ensure former counsel has turned over the entire file, or to request
such basic information during the course of discovery.
17 Plaintiffs also refer to section 1008, subdivision (c) in their briefing on
appeal but that subdivision is inapposite because plaintiffs’ motion was not
based on a change in law.
17
DISPOSITION
The order denying plaintiffs’ “motion for the court’s own motion” to
reconsider the final judgment is affirmed. Respondents are entitled to their
costs on appeal.
GUERRERO, J.
WE CONCUR:
HALLER, Acting P. J.
DATO, J.
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