ALBERT BARRIOS VS JOEL LEEBOVE ET AL

Tentative Rulings

Case Number: BC605281    Hearing Date: February 10, 2020    Dept: 47

Albert Barrios, et al. v. Joel Leebove, et al.

MOTION FOR ORDER OF RECONSIDERATION

MOVING PARTY: Plaintiff Albert Barrios, an individual, on behalf of other stakeholders, and derivatively on behalf of 123 Los Robles, LLC

RESPONDING PARTY(S): Defendant Patrick Chraghchian

STATEMENT OF FACTS

Plaintiff alleges that Defendants breached their fiduciary duties to a limited liability company by giving an easement to an entity Defendants owned which benefited Defendants.

Plaintiff moves for reconsideration of the Court’s order adopting the Judicial Referee’s finding that the Reciprocal Easement Agreement entered into by the derivative party and 105 LR, LLC, an entity owned and controlled by the derivative defendants, was “fair and reasonable” to the member investors of 123 Robles LLC.

TENTATIVE RULING:

Plaintiff’s motion for reconsideration is DENIED.

DISCUSSION:

Motion for Reconsideration

Plaintiff moves for reconsideration of a September 2018 order of the Court adopting the Judicial Referee’s finding that the Reciprocal Easement Agreement entered into by the derivative party and 105 LR, LLC, an entity owned and controlled by the derivative defendants, was “fair and reasonable” to the member investors of 123 Los Robles LLC.

Plaintiff cites no statutory basis for this motion in his opening brief and devotes no space to explaining the criteria for a motion for consideration, and it is therefore perhaps not surprising that Defendant assumed that it was brought under CCP § 1008(a). In reply, for the first time, Plaintiff indicates that he intended to bring the motion under CCP § 1008(b) and (c). CCP § 1008(c) provides only that the Court may reconsider its prior orders “on its own motion,” and therefore that subsection is inapplicable where, as here, a party has brought a motion for reconsideration.

CCP § 1008 provides, in relevant part:

(b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.

(CCP § 1008(b) (bold emphasis added).)

In connection with a motion for reconsideration, there must be “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; see also Pazderka v. Caballeros Dimas Alang, Inc. (1998) 62 Cal.App.4th 658 [“With regard to new facts, ‘the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.’”].)

Here, Plaintiff argues that the “new or different . . . circumstances” justifying reconsideration arose in December 2019, when Defendant “designated several expert witnesses on the propriety of the Reciprocal Easement Agreement.” (Motion, at p. 2.) Plaintiff argues that he should be able to argue that the Reciprocal Easement Agreement was not “fair and reasonable” if Defendant plans to “defend the Breach of Fiduciary Duty – Lot Tie Agreement with facts that can only be attributed to the Reciprocal Easement Agreement.” (Ibid.) This is not, however, a “changed circumstance” that would have led the Court to reach a different decision regarding the Reciprocal Easement Agreement. Moreover, Defendant has indicated that its designated expert, Keith Strohl, would be testifying regarding the Lot-Tie Agreement, not the Reciprocal Easement Agreement. The Court’s 2018 ruling is clear in adopting the Referee’s finding on the Reciprocal Easement Agreement. (Final Ruling, 9/17/18, at p. 5.) It is also clear regarding which issues will be tried in Court, including whether the Lot-Tie Agreement was fair and reasonable. (Ibid.) The Court does not intend to retry issues that have already been decided.

Other than Defendant’s expert witness designation, Plaintiff points to no “new or different facts, circumstances, or law” that would justify reconsideration. Plaintiff’s other arguments either were raised or could have been raised back in 2018. For example, Plaintiff argues that the “Judicial Referee’s finding that the garages under the Burton and the Campbell building were ‘spacious and elegant’ misunderstands the ‘reciprocal’ part of the Reciprocal Easement Agreement in that the Campbell tenants must access the underground parking garage of the Burton to exit while the Burton tenants have no legal access to the Campbell garage; and if the Burton garage is spacious and elegant then defendants must ‘reciprocate’ with something of value that is equal to a 2 level spacious and elegant garage – defendants didn’t even come close to this required proof.” (Motion, at p. 2.) This is not new information, and Plaintiff either raised or could have raised this argument in 2018. (See, e.g., Plaintiff’s Bench Brief Re: Tentative Ruling, 09/04/18, at p. 8 [“The Burton tenants had no right (and no need) to go under The Campbell; only The Campbell tenants had the right to go under The Burton.”].)

In addition, as Defendant notes, Plaintiff did not comply with the procedural requirements of CCP § 1008. The subsection on which Plaintiff purports to rely requires the moving party to show “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.” (CCP § 1008(b) (bold emphasis added).) The Declaration of Bruce Altschuld submitted with this motion addresses none of those required issues.

Thus, Plaintiff has not presented any new or different facts, law or circumstances which were not previously considered by the Court in issuing its September 17, 2018 ruling. Accordingly, the motion for reconsideration is DENIED.

Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 10, 2020 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org