On 04/23/2018 a Contract - Other Contract case was filed by MICHAEL D BOROOKHIM MD INC against ROBERT WEBER M D in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
MICHAEL D. BOROOKHIM MD INC.
WEBER ROBERT M.D.
9/28/2018: DECLARATION OF DON PHAN-HUY IN SUPPORT OF PROOF OF SERVICE OF SUMMONS ON ROBERT WEBER, M.D. (OSC RE SERVICE)
5/2/2018: NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICE
4/23/2018: COMPLAINT FOR DAMAGES
at 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Not Held - Continued - Court's MotionRead MoreRead Less
at 08:30 AM in Department 26, Elaine Lu, Presiding; Order to Show Cause Re: (Entry of Default Judgment) - Not Held - Continued - Court's MotionRead MoreRead Less
Minute Order ( (Case Management Conference; Order to Show Cause Re: Entry of ...)); Filed by ClerkRead MoreRead Less
Declaration (in Opposition to Court's Order to Show Cause); Filed by Robert M.D. Weber (Defendant)Read MoreRead Less
Notice (Of Hearing Date (OSC RE: Entry of Default Judgment)); Filed by Michael D. Borookhim MD, Inc. (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 26, Elaine Lu, Presiding; Order to Show Cause Re: (why sanctions should not be imposed for plaintiff's failure to file proof of service) - HeldRead MoreRead Less
at 08:30 AM in Department 26, Elaine Lu, Presiding; Case Management Conference - Not Held - Continued - Court's MotionRead MoreRead Less
Case Management Order; Filed by ClerkRead MoreRead Less
Minute Order ( (Case Management Conference; Order to Show Cause Re: why sanct...)); Filed by ClerkRead MoreRead Less
Case Management StatementRead MoreRead Less
Other - (MINUTE ORDER); Filed by ClerkRead MoreRead Less
Declaration; Filed by Michael D. Borookhim MD, Inc. (Plaintiff)Read MoreRead Less
DECLARATION OF DON PHAN-HUY IN SUPPORT OF PROOF OF SERVICE OF SUMMONS ON ROBERT WEBER, M.D. (OSC RE SERVICE)Read MoreRead Less
CASE MANAGEMENT STATEMENTRead MoreRead Less
Case Management Statement; Filed by Michael D. Borookhim MD, Inc. (Plaintiff)Read MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCE & OSC RE PROOF OF SERVICERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
Complaint; Filed by Michael D. Borookhim MD, Inc. (Plaintiff)Read MoreRead Less
COMPLAINT FOR DAMAGESRead MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC702570 Hearing Date: December 23, 2019 Dept: 26
MICHAEL D. BOROOKHIM, M.D.,
ROBERT WEBER, M.D.,
Case No.: BC702570
Hearing Date: December 23, 2019
[TENTATIVE] order RE:
defendant’s motion for reconsideration of the SEPTEMBER 10, 2019 order DENyING DEFENDANT’s motion to set aside the default
Michael D. Borookhim, M.D. (Plaintiff) sues Robert Weber, M.D. (Defendant) for damages arising from a sublease agreement between Plaintiff and Defendant through which Plaintiff would sublet office space to Defendant. Plaintiff alleges that Defendant began to withhold rent in 2014 after Plaintiff had renovated the office space pursuant to a promise from Defendant that he would sign a long-term lease to rent the space from Plaintiff.
On April 23, 2018, Plaintiff filed his complaint.
On October 2, 2018, Plaintiff filed proof of service of the Summons and Complaint reflecting service on September 25, 2018. On December 13, 2018, default was entered against Defendant.
At the January 4, 2019 case management conference, Plaintiff’s counsel acknowledged that the proof of service filed on October 2, 2018 was defective.
On January 10, 2019, Plaintiff filed an amended proof of service reflecting substituted service of the summons and complaint at Defendant’s business on September 25, 2018 by
leaving the summons and complaint with Defendant’s assistant, “BOB CALIMY – STATED, AUTHORIZED TO ACCEPT – ASSISTANT NURSE.” This proof of service included a declaration of diligence reflecting that the process server made two attempts to serve Defendant before leaving the documents with “Bob Calimy” on September 25, 2018. Thereafter, the process server mailed a copy of the documents to Defendants address on September 26, 2018.
On February 1, 2019, Plaintiff renewed its request for entry of default, and the clerk’s office entered default against Defendant.
On February 5, 2019, Defendant filed his answer to the complaint.
Defendant appeared in propria persona at a hearing on February 6, 2019. At that time, the Court advised Defendant that it would not consider his answer until he filed a motion to set aside default because he was in default at the time that he answered Plaintiff’s complaint. Defendant represented that he would be filing a motion to set aside the default.
On March 11, 2019, Defendant filed a declaration in opposition to the Court’s order to show cause re: entry of default.
At a hearing on April 4, 2019, the Court made clear that Defendant’s declaration filed on March 11, 2019 would not suffice as a motion to set aside default. Defendant represented that he reserved a hearing date of September 6, 2019 for his motion to set aside default. On the Court’s own motion, the case management conference and order to show cause re: entry of default judgment were continued to be heard concurrently with Defendant’s motion to set aside his default.
On July 18, 2019, Defendant filed a motion to set aside striking of the answer. Plaintiff opposed. Defendant filed supplemental briefing on September 9, 2019, which the Court considered.
On September 10, 2019, the Court denied Defendant’s motion to set aside the default and scheduled the order to show cause re: entry of default judgment for December 3, 2019.
On September 18, 2019, Defendant filed this motion for reconsideration of the Court’s denial of his motion to set aside the default.
On December 13, 2019, Plaintiff filed a late opposition to this motion for reconsideration. The Court will not consider Plaintiff’s opposition because of its untimeliness.
On December 13, 2019, Defendant filed a reply to the opposition indicating that the opposition was filed late and did not give enough time to craft a reply.
Defendant brings this motion for reconsideration pursuant to CCP § 1008. CCP section 1008(a) provides in relevant part:
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.
(CCP § 1008(a).) As stated by the court in Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.” There is a strict requirement of diligence - i.e., the moving party must present a satisfactory explanation for failing to provide the evidence or different facts earlier. (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.)
In denying Defendant’s motion to set aside striking of the answer, the Court found that (1) the motion was not filed within a reasonable time, (2) that the defendant failed to present any evidence to overcome the presumption of validity of service, and (3), with regard to excusable neglect, that the affidavits in support of Defendant’s motion to vacate were too vague and equivocal to constitute reliable evidence.
In this motion for reconsideration, Defendant addresses only the third issue raised by the court. In support of his motion for reconsideration, Defendant submits a single case, two revised affidavits, and a new affidavit. Defendant also states that the complaint fails to state a cause of action -- an issue which is beyond the purview of this motion for reconsideration.
1. Timeliness of Motion for Reconsideration
CCP § 1008(a) provides that any party affected by the order may within 10 days after service upon the party of written notice of entry of the order move for reconsideration of the matter.
In this case, Notice of Court’s Rulings on Defendant’s Motion to Set aside Striking of the Answer was entered on September 11, 2019. Defendant filed his motion for reconsideration on September 18, 2019, within the time limit provided by CCP § 1008(a). Thus, Defendant has timely filed the instant motion for reconsideration of the Court’s September 10, 2019 order denying Defendant’s motion to set aside default.
2. Change of Law
A “change of law” under section 1008, subdivision (c), “is always an appropriate basis, up until a final judgment is entered, for changing an interim order....” (Blake v. Ecker (2001) 93 Cal.App.4th 728, 739, fn. 10), (disapproved on other grounds in Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107, fn. 5.) 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. (Pinela v. Neiman Marcus Group, Inc. (2015) 238 Cal.App.4th 227, 237.)
In support of Defendant’s motion for reconsideration, Defendant points to a single case for the proposition that the “broad remedial provisions” of Code of Civil Procedure section 473 should be “liberally applied to carry out the policy of permitting trial on the merits.” (Defendant’s Motion, p. 5 [citing Carrasco v. Craft, (1985) 164 Cal. App. 3d 796, 803].) Defendant’s citation to Carrasco v. Craft is unavailing as Carrasco was decided in 1985 and does not present any new change of law. Nor does Carrasco v. Craft address the Court’s original concerns with the motion being filed within a reasonable time, the validity of service, or the issue of the affidavits being too vague and equivocal to constitute reliable evidence.
3. New Facts
“[F]acts of which a party seeking reconsideration was aware at the time of the original ruling are not ‘new or different facts,’ as would support a trial court's grant of reconsideration.” In re Marriage of Herr (2009) 95 Cal. Rptr. 3d 464, 174.) In addition, “[a] party seeking reconsideration also must provide a satisfactory explanation for the failure to offer the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 213) (internal citation omitted) (emphasis added.)
Defendant proffers different facts in the form of revised declarations from Defendant and Robert Calimon (“Calimon”), and an additional declaration from Theodore Kyriazis (“Kyriazis”). With regard to the additional declaration by Kyriazis, Defendant has not provided any explanation as to why he did not include Kyriazis’s declaration with his moving papers for his motion to vacate default, filed in July 2019, especially in light of Defendant’s contention that “Kyriazis was integral in Defendant’s discovery of Summons and Complaint that was filed against Defendant.” (Defendant’s Motion for Reconsideration, pg. 5:15-16.) Regarding his own original declaration, Defendant has stated that the previous declaration was written in error and haste due to being a pro per defendant. (Weber Decl. ¶ 11.) The Court finds that Defendant has failed to provide a satisfactory explanation for his failure to include these declarations in their current form initially. Moreover, even if the Court deems Defendant’s explanation sufficient, the Court finds that Kyriazis’s new declaration and Defendant’s and Calimon’s revised declarations do not provide a basis for this Court to find excusable neglect under CCP § 473(b).
“‘Excusable neglect’ is defined as the act or omission that might be expected of a prudent person under similar circumstances. It is not shown by the mere failure to discover a fact until it is too late; the party seeking relief must establish that in the exercise of reasonable diligence, he failed to discover it.” (People ex rel. Dep't of Transportation v. Superior Court (2003) 105 Cal. App. 4th 39, 44) (internal citations omitted) (emphasis added.)
Based on the newly provided and revised declarations, the Defendant was on notice that Plaintiff might sue about the sublease in 2014. (Kyriazis Decl. ¶ 4.) Calimon received the complaint and summons on September 25, 2018 and placed them in a folder on Defendant’s desk. (Calimon Decl. ¶¶ 4, 6.) Defendant was out of the office on that day in observance of the Jewish holiday Sukkoh from September 24 through the 30th that year. (Weber Decl. ¶ 6.) Sometime in January of 2019, Kyriazis (Defendant’s real estate broker) was at the courthouse on another matter and conducted a cursory search of Defendant’s name in the Court’s database.” (Kyriazis Decl. ¶ 5.) Defendant asserts that he filed an answer within days of learning about the action. (Weber Decl. ¶ 10.) The docket reflects that Defendant filed his answer on February 5, 2019.
The Court notes that Kyriazis’s declaration suffers from some of the same vagueness that the Court previously identified in the declarations Defendant submitted with his original motion to vacate. Kyriazis does not identify the specific date or part of January 2019 when he purportedly discovered this action. Nor does Kyriazis identify the other matter which caused him to be at the courthouse or why litigation in the other action led Kyriazis to run a name search for Defendant. Further, at best, Kyriazis’s declaration and Plaintiff’s and Calimon’s revised declarations explain that Defendant did not discover the complaint until an unidentified date in January of 2019.
Significantly, none of the facts proffered by Defendant explain why, in the exercise of reasonable diligence, Defendant could not have discovered the existence of a lawsuit for which Defendant concedes that the summons and complaint had been properly delivered to his desk at least four months before entry of default. The only explanation Defendant provides is “the hectic schedule of the office and [his] familial and religious obligations.” (Id. at ¶ 7.) Even accepting as true that Defendant’s schedule was hectic due to various obligations and even construing the evidence liberally in favor of permitting trial on the merits, the Court finds that Defendant’s failure to read the Summons and Complaint during the four months that it was sitting on his desk demonstrates a lack of reasonable diligence.
CONCLUSIONS AND ORDER
Defendant has not met his burden of showing any new or different facts, circumstances, or law that would constitute excusable neglect under CCP § 473(b). Therefore, Defendant’s Motion for Reconsideration is DENIED.
Movant is ordered to provide notice of this order and file proof of service of such.
DATED: December 23, 2019 ___________________________
Judge of the Superior Court
 The court construed this motion liberally as one seeking to set aside the default and will continue to do so in this motion for reconsideration.