SAM SABER VS KINKLE RODIGERS AND SPRIGGS, APC, ET AL.,

Tentative Rulings

Case Number: SC126999    Hearing Date: December 05, 2019    Dept: P

Sam Saber v. Kinkle, Rodiger, and Spriggs, APC Case No. SC126999

Plaintiff’s Motion to Set Aside and Vacate Judgment

Hearing Date: December 5, 2019

Plaintiff alleged defendants breached their fiduciary duties and colluded with opposing counsel to undermine plaintiff’s interests in a lawsuit. On June 26, 2019 this court sustained defendants’ demurrer to plaintiff’s fourth amended complaint without leave to amend on the grounds that plaintiff failed to cure multiple fatal pleading defects despite several opportunities to do so. On August 16, 2019 dismissal was entered in defendants’ favor.

Plaintiff, now in pro per, moves to set aside the entry of judgment under Code of Civ. Proc. §473. Plaintiff argues the defects in his five prior complaints were caused by his first counsel’s mental incapacity and his second counsel’s failure to fully review the case file. Additionally, plaintiff argues it was improper for the court to dismiss the breach of fiduciary duty cause of action without leave to amend since that cause of action was first included in the fourth amended complaint.

Under Code of Civ. Proc. §473, “upon any terms as may be just” a court may “relieve a party or his or her legal representative from a judgment dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Since the law favors trial on the merits, “any doubts in applying section 473 must be resolved in favor of the party seeking relief. When the moving party promptly seeks relief and there is no prejudice to the opposing party, very slight evidence is required to justify relief. Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1343.

In February 2018 plaintiff’s initial counsel Michael Feldman abandoned the case after filing and amending the complaint. Feldman’s withdrawal was allegedly the result of mental and emotional incapacity. Plaintiff’s Exhibit B. Plaintiff retained Thomas Sands in March 2018 and filed a second amended complaint after demurrer to the first amended complaint was sustained with leave to amend. Plaintiff acknowledges the second amended complaint was “not the best,” because attorney Sands did not review the voluminous materials received from Feldman. Motion at pg. 9. The third amended complaint was immediately superseded by a fourth amended complaint. Demurrer to the fourth amended complaint was sustained without leave to amend. After demurrer was sustained, plaintiff reviewed the case file, then filed a fifth amended complaint addressing the issues of the most recent demurrer.

Plaintiff argues the second amended complaint’s deficiencies were excusable because Sands had inadequate time to review the file. Motion at pgs. 10-11. While this may constitute neglect, plaintiff does not explain counsel’s failure to review the documents before filing the third or fourth amended complaints.

Plaintiff amended once without leave of the court (the first amended complaint). The court then granted leave to add a cause action for breach of fiduciary duty, which was deficiently pleaded via the fourth amended complaint. The interests of justice dictate plaintiff should have an opportunity to cure the defects, which he has not previously had regarding the breach of fiduciary duty claim. As plaintiff had multiple chances to amend the other causes of action, he is not entitled another chance to amend those.

Motion GRANTED as to the breach of fiduciary duty claim ONLY and DENIED as to all other causes of action. Plaintiff may file a final fifth amended complaint containing a single cause of action for breach of fiduciary duty. No further leave to amend will be granted.

Case Number: SC126999    Hearing Date: November 05, 2019    Dept: P

TENTATIVE RULING

Sam Saber v. Kinkle Rodiger and Spriggs, APC Case No.: SC126999

Plaintiff’s Motion for Reconsideration of Order Granting Demurrer Without Leave to Amend

Hearing Date: 11/5/2019

Plaintiff alleges fraud and legal malpractice by his former counsel. On June 26, 2019 the court sustained defendants’ demurrers to plaintiff’s fourth amended complaint without leave to amend after allowing plaintiff multiple prior opportunities to amend. Judgment was entered for defendants on August 19, 2019.

Plaintiff moves for reconsideration, arguing he discovered “new and different evidence” supporting a new cause of action for negligence when he recovered his case file, which was returned on July 2, 2019. Plaintiff also argues his attorney’s failure to follow the court’s instructions set forth in prior demurrer rulings was the result of “severe mental problems.” Plaintiff argues it would be inequitable to deprive him of his day of court because of his attorney’s failings.

A court may reconsider a prior ruling if the party affected provides notice of “new or different facts, circumstances, or law.” Cal. Code of Civ. Proc. §1008(a). When a trial court enters judgment, it loses jurisdiction to consider a motion for reconsideration. Safeco Ins. Co. v. Architectural Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1482.

The court entered judgment against plaintiff in August 2019. Per Safeco, this court no longer has jurisdiction to hear a motion for reconsideration. Furthermore, even if it did consider the motion, plaintiff has not identified any alleged “new and different evidence” that might justify granting leave to file a fifth amended complaint.

Finally, plaintiff’s argument that judgment was entered due to his attorney’s negligence or incapacity is not a valid basis for granting a motion for reconsideration. Such would be addressed via a motion pursuant to Cal. Code of Civ. Proc. §473 for relief from a judgment due to mistake, inadvertence, surprise, or excusable neglect. Motion DENIED.