Metropolitan News-Enterprise


Tuesday, February 18, 2020


Page 1


Court of Appeal:

Party Cannot Obtain Summary Judgment Through Motion Under CCP §1008(a)

Dhanidina Says New Application Must Be Made, Upon 75 Days’ Notice,

Accompanied by Updated Statement of Undisputed Facts


By a MetNews Staff Writer


A party that is denied summary judgment cannot subsequently gain such a judgment through a motion for reconsideration under Code of Civil Procedure §1008(a), the Court of Appeal for this district has held.

Justice Halim Dhanidina of Div. Three wrote the opinion, filed Thursday. It reverses a summary judgment awarded by Los Angeles Superior Court Judge Maurice A. Leiter to Design Group Facility Solutions, a general contractor sued by a worker who was injured at a construction site.

Leiter initially denied summary judgment to Design. Within 10 days of the adverse ruling, Design made a motion under §1008(a) which permits reconsideration “based upon new or different facts, circumstances, or law.”

Design claimed new facts, which were derived from a deposition that was taken after it filed its motion, pursuant to Code of Civil Procedure §437c, for summary judgment. The plaintiff, Ismael Torres Jr., argued that the facts were not “new,” as required by §1008(a), because the transcript was available well before the hearing on the motion, and Design could have made an ex parte motion seeking leave to present additional evidence before that hearing.

Torres also argued that once summary judgment was denied without excerpts from the deposition transcript having been offered, Design should have filed a new or amended motion for summary judgment in order to comply with the requirement of §437c of 75 days’ notice and a separate statement of undisputed facts.

‘Procedural Bypass’

 The appeals court agreed. Dhanidina wrote:

 “As an initial matter, we offer no opinion on whether Design provided a satisfactory explanation for its failure to produce the evidence at an earlier time. For our purposes here, we presume the trial court was satisfied with Design’s explanation.

“Our concern, however, is that if we affirm the trial court’s ruling, we would endorse a procedural bypass to the due process protections afforded a party opposing summary judgment under section 437c. While Design technically moved for reconsideration within the 10-day period under section 1008, subdivision (a), it was, in effect, a renewed motion for summary judgment under section 1008, subdivision (b) or section 437c, subdivision (f)(2).”

Section 1008(b) authorizes “a subsequent application for the same order upon new or different facts, circumstances, or law.” Sec. 437c(f)(2) provides, in part:

“A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Procedural Protections

Dhanidina declared:

“…Torres was entitled to the procedural protections afforded to parties opposing summary judgment, including 75 days’ notice and a separate statement of material facts.…By granting the motion for reconsideration and then summary judgment at the same time, the trial court failed to enforce these protections and abused its discretion.”

The case is Torres v. Design Group Facility Solutions, Inc., 2020 S.O.S. 610.

Daniel W. Johnson of the Law Offices of Berglund & Johnson was the attorney on appeal for Torres. Michael J. Larin and Jerome P. Doctors of Lynberg & Watkins, along with Richard S. Endres, Nicholas W. Davila and Grant R. Mullen of London Fischer  LLP, represented Design.


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