STEVEN MARKOFF ET AL VS BANK OF AMERICA ET AL

Tentative Rulings

Case Number: BC644173    Hearing Date: February 24, 2020    Dept: 51

Background

On December 24, 2019, the Court confirmed its previous ruling (Judge Raphael) made on April 17, 2017 and granted Defendants’ Motion for Judgment on the Pleadings (“MJOP”) without leave to amend based on the doctrine of res judicata.

On January 21, 2020, Plaintiffs filed the instant motion for reconsideration of this ruling on MJOP.

On January 27, 2020, the Court entered judgment in this matter.

Motion for Reconsideration Standard¿ 

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“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law’ which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. . . . A motion for reconsideration will be denied absent a strong showing of diligence.”¿¿Forrest v. Department of Corporations¿(2007) 150 Cal.App.4th 183, 202, disapproved on another ground in¿Shalant¿v. Girardi¿(2011) 51 Cal.4th 1164, 1172, fn. 3);¿Baldwin v. Home Sav. of America¿(1997) 59 Cal.App.4th 1192, 1199 (noting that 1992 amendment to Code of Civil Procedure section 1008 tightened the diligence requirements).¿ 

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Analysis

Plaintiffs move to have the Court reconsider its ruling on December 24, 2019 on its own motion pursuant to CCP § 1008. Plaintiffs argue that the Court relied on incorrect facts in granting the MJOP because, while the Court of Appeal reversed the judgment as to the defamation cause of action, this Court stated in its ruling that the Court of Appeal only “affirmed” the judgments in favor of the Bank. Plaintiffs argue that these incorrect facts not only are critical to the ruling but also constitute “different facts” that warrant reconsideration under CCP § 1008.

First, as Defendants point out, once judgment has been entered, the court may not reconsider it and loses its unrestricted power to change the judgment. G.R. v. Intelligator (2010) 185 Cal.App.4th 606, 622 (“ ‘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.’ “). Since the Court has already entered judgment on January 27, 2020, the Court cannot reconsider its judgment under CCP § 1008, let alone on its own motion.

Further, Plaintiffs fail to present any new or different facts relevant to the order. “[M]otions to reconsider allow the trial court to consider new facts or law relevant to its order….” Wiz Tech., Inc. v. Coopers & Lybrand (2003) 106 Cal. App. 4th 1, 17-18 (no relevant basis for reconsideration shown). Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration.¿Gilberd¿v. AC Transit¿(1995) 32 Cal.App.4th 1494, 1500.¿ Judicial error does not constitute a new fact or circumstance under Code of Civil Procedure section 1008.¿¿Jones v. P.S. Development Co., Inc.¿(2008) 166 Cal.App.4th 707, 724 (disapproved on another ground in¿Reid v. Google, Inc.¿(2010) 50 Cal.4th 512, 532 fn. 7). The Rains case cited by Plaintiffs do not hold that courts’ reliance on incorrect facts constitute “different facts.” Rains v. Superior Court (1984) 150 Cal. app. 3d 933, 944.

Most importantly, Plaintiffs’ motion is based on facts that are immaterial to the Court’s ruling on MJOP. See Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690 (A new fact that is collateral to the merits does not warrant reconsideration.). The Court of Appeal affirmed the judgment as to the breach of contract claims and reversed as to the defamation cause of action. Killian Decl., Ex. A. The fact that the Court of Appeal reversed as to the defamation claim bears no relation at all to the MJOP ruling because the present Complaint only alleges breach of contract and declaratory relief, wholly independent of any defamation claim. Plaintiffs fail to even elaborate how addressing the judgment on the defamation claim could affect the Court’s MJOP ruling.

Conclusion

Plaintiffs’ motion for reconsideration is DENIED.

Defendants to give notice.

Dated:

__________________________________________

Dennis Landin

Superior Court Judge

Case Number: BC644173    Hearing Date: December 24, 2019    Dept: 51

Background

These three related cases were brought by Plaintiffs Steven Markoff, et al. (“Plaintiffs”) against Defendants Bank of America, N.A. (“Bank”), et al. (collectively “Defendants”) regarding a short sale of a home between Plaintiffs which was later disapproved by the Bank.

On January 14, 2014, Plaintiffs Steven and Jadwiga Markoff filed their lawsuit (Case No. BC533212) against the Bank. The trial court sustained the Bank’s demurrer without leave to amend and denied Plaintiffs’ motion for reconsideration and new trial, and the Court of Appeal later affirmed these judgments in favor of the Bank.

On January 14, 2015, Plaintiff Steven Sparks also filed his lawsuit (Case No. BC569359) against the Bank. The trial court again sustained the Bank’s demurrer without leave to amend and denied Plaintiffs’ motion for reconsideration, and the Court of Appeal also affirmed these judgments in favor of the Bank.

On December 16, 2016, Plaintiffs filed this action (Case No. BC644173) against Defendants for breach of contract and declaratory relief.

On April 17, 2017, this Court (Judge Raphael) sustained the Bank’s demurrer based on a plea in abatement and stayed this action pending the appeals in the two related cases.

On November 19, 2019, the Bank field the instant Motion for Judgment on the Pleadings (“MJOP”) in this action, based on the recent final judgments by the Court of Appeal in BC533212 and BC569359.

The Court considered the moving, opposition, and reply papers.

Request for Judicial Notice

The Bank’s Request for Judicial Request for the provided court records and the result of appellate opinions is GRANTED. Evid. Code § 452(d); Gilmore v. Sup. Ct. (1991) 230 Cal. App. 3d 416, 418 (“Superior courts may take judicial notice of the existence of an appellate opinion and the result reached”).

MJOP Analysis 

The Bank brings this MJOP based on the doctrine of res judicata. The Bank argues that this action is barred because it re-litigates claims conclusively determined in the first two actions and it makes no difference that this action asserts different breach of contract claims based on purported new facts.

The Court confirms its previous ruling (Judge Raphael) of April, 17, 2017 that all three actions involve the same parties and transaction with regards to the same primary right based on “nearly identical, overlapping facts and corresponding duties.” RJN, Ex. 11. The purported “new allegations” in this Complaint are merely additional statements in support of the claims in the previous cases, and variations of breach of contract theories based on those allegations were in fact presented before the Court of Appeal and were rejected. RJN, Ex. 1, 10. Now that judgments to dismiss the two related cases are affirmed on appeal, the identical claims asserting the same primary right in this action are meritless and barred by res judicata. Planning & Conservation League v. Castaic Lake Water Agency

Accordingly, Defendants’ MJOP is GRANTED without leave to amend and this action is dismissed.

Conclusion

Defendants’ Motion for Judgment on the Pleadings is GRANTED without leave to amend.

Defendants to give notice.

Dated:

__________________________________________

Dennis Landin

Superior Court Judge