D2 - Judge LaBarbera Tentative Rulings
RE: Motion to Reconsider Rulings on Discovery Motions and Demurrer
CV090466/ Lewis v City of SLO et al.,
Hearing Date: January 27, 2010,
________________________________________________________________________
Plaintiff Counsel
Heather Dawn Lewis Self Represented (No Number)
Defendant Counsel
City of
Jeffrey Booth
Leland O’Reilly and Roy Ogden 544-5600
College Towing Inc.,
________________________________________________________________________
TENTATIVE RULING
Plaintiff brings a motion for reconsideration of the court’s rulings on two motions. The first involved a motion for discovery and the other a demurrer by Leland O’Reilly and College Towing, Inc.
Motion to Reconsider Rulings on Discovery Motions:
Plaintiff filed her motion for reconsideration of the court’s December 30, 2009 discovery order on January 8, 2010. The motion does not provide 16 court days notice. Weil & Brown, Civil Procedure Before Trial (Rutter Group 2009) §7:1554.5 In any event, the court rules on the motion.
The court notes at the outset that the challenged ruling cites certain code provisions that contain a typographical error. With respect to the code sections on Requests for Admissions, the correct citations are CCP §2033.210, 2033.220 and 2033.230. Those statutes were cited to provide guidance concerning the formulation of a proper response to requests for admissions.
CCP §1008 controls motions for reconsideration. A motion for reconsideration cannot be used simply to ask the court to change its mind.
Applications for either reconsideration or for renewal of an order must be based on “new or different facts, circumstances, or law.” Thus, the moving party must state by affidavit what application was made before, when and to what judge, what order or decision was made, and what new or different facts, circumstances, or law are claimed. (C.C.P. 1008(a), (b).) 6
A party must provide a satisfactory explanation for failing to provide the evidence earlier. Weil & Brown, Civil Procedure Before Trial (Rutter Group 2009) §9:329
No new facts, circumstances or law are presented by plaintiff in her affidavit.
Plaintiff asserts that verifications were unnecessary. Responses to discovery must be verified. An unverified response that refers to a verified pleading does not satisfy the requirement for verification. Where a response is unverified, it is the equivalent of no response at all. See Weil & Brown, Civil Procedure Before Trial (Rutter Group 2009) §8:1113
Plaintiff asserts that her objections were made with substantial justification because they were based upon facts she knew at the time. An objection to a discovery request does not depend on the responding party’s knowledge of the facts at the time of the response. The objections were not legally sufficient.
Plaintiff asserts that the award of sanctions is excessive. These arguments were not raised at the hearing and there is no showing why they could not have been raised at that time.
The motion for reconsideration of the court’s ruling on the discovery motions is denied.
Motion to Reconsider Ruling on Demurrer:
Plaintiff also brings a motion for reconsideration of the court’s ruling on the demurrer of Leland O’Reilly and College Towing, Inc..
Plaintiff presents a contract between the police department and the towing company. There is no explanation why this document was not provided at the earlier hearing nor is there an argument concerning why this contract establishes liability on the part of the demurring defendants.
Plaintiff’s submission of the declaration of Max Price does not provide new information that would cause the court to reconsider its ruling. Moreover, there is no explanation concerning why the information was not presented at the first hearing. Finally, plaintiff does not provide a new complaint that would state a cause of action against this defendant. See Weil & Brown, Civil Procedure Before Trial (Rutter Group 2009) §7:155.6
Plaintiff’s assertion that Vehicle Code §22651 is unconstitutional has no real bearing on the potential liability of the towing company. The argument does not constitute new or different facts, circumstances, or law.
Finally, judgment has been entered in this case as of January 12, 2010.
“Once the trial court has entered judgment, it is without power to grant reconsideration. The fact that a motion for reconsideration may have been pending when judgment was entered does not restore this power to the trial court.” APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 182
Accordingly, the motion for reconsideration is denied.
(Last changed January 26th, 2010; tagged in tentative rulings)