Motion For ReconsiderationMotionCal. Super. - 2nd Dist.August 20, 2019tronically FILED by 1 © 0 J Oo O t Ww 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 perior Court of California, County of Los Angeles on 07/13/2020 05:36 PM Sherri R. Carter, Executive Officer/Clerk of Court, by B. McClendon,Deputy C JAE H. KIM, ESQ. (SBN212610) JHK LAW GROUP, APLC 16 North Marengo Ave., Suite 418 Pasadena, CA 91101 213.387.0394 jhklawgroup @ gmail.com Attorney for Plaintiff Alexis Atherton SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - WESTERN DISTRICT ALEXIS ATHERTON, an individual; Case No.: 19STCV29278 Plaintiff, PLAINTIFF'S NOTICE OF MOTION AND MOTION FOR RECONSIDERATION RE: v. DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS FLINKMAN PARTNERS, LLP; and (filed concurrently with Declaration of Jae H. DOES 1 through 25, inclusive; Kim) Defendants. Date: Time: Location.: Santa Monica Courthouse Dept. N (Date and time to be determined by the Court Clerk) On in Dept. N of the Santa Monica Courthouse, Plaintiff Alexis Atherton (“Plaintiff”) shall move the Court to reconsider its ruling on the Defendant’s Motion for Judgment On The Pleadings regarding Plaintiff’s Personal Injury Cause of Action, pursuant to CCP 1008(a)’s provision for different circumstances. Dated: July 13, 2020 JHK LAW GROUP, APLC By: Jae Kim JAE H. KIM ESQ. Attorney for Plaintiff Alexis Atherton lerk 1 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS On or about August 6, 1994, Plaintiff entered into an agreement with Defendant to rent an apartment from Defendant (the “Subject Property”). In early 2016, Plaintiff’s apartment became infested with mold and Plaintiff suffered an injury. On or about October 11, 2019, Defendant filed a Motion for Judgment on the Pleadings. Plaintiff filed a timely Opposition on November 27, 2019. On July 1, 2020, the Court issued a tentative ruling removing Personal Injury and Breach of the Warranty of Good Faith and Fair dealing from Plaintiff’s Complaint without leave to amend. On July 2, 2020, Defendant’s Motion for Judgment on the Pleadings was heard before the Court. Plaintiff appeared telephonically due to the COVID-19 pandemic and Plaintiff's Personal Injury cause of action was stricken from the Complaint without leave to amend. Plaintiff’s counsel had never encountered a situation where a Personal Injury Cause of Action was removed from a complaint alleging personal injuries on the basis that the cause of action itself was not valid. Plaintiff and his counsel anticipated the only thing that might be at issue regarding the veracity of the cause of action would be whether or not the facts were adequately pled to support the cause of action. On the date of the hearing, Plaintiff intended to provide the Court with additional evidence in support of his Personal Injury Cause of Action (the Judicial Council form attached hereto) but was unable to do so due to the unique circumstances of the COVID-19 pandemic. Plaintiff now submits the additional information he was unable to submit on the date of the hearing. This motion is made in good faith, upon unique circumstances that have altered the normalcy of Court proceedings, and due to a genuine misunderstanding. 2 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O II. AUTHORITY FOR MOTION FOR RECONSIDERATION Motions for Reconsideration are authorized pursuant to CCP 1008. Courts have long recognized these motions when new facts, evidence or circumstances are called into light. “The purpose of a motion for reconsideration is much the same as a motion for new trial or to vacate a judgment; that purpose is to persuade the trial court to make a different order or judgment, one not adverse to the party so moving.” Stratton v. First Nat. Life Ins. Co., 210 Cal.App.3d 1071, 1080 (Cal. Ct. App. 1989) III. LEGAL ARGUMENT Plaintiff recognizes CCP 1008 lists specific grounds for bringing a motion for reconsideration and is “specifically intended to bar” “brazen forum shopping” and dilatory, repetitive arguments. In re Marriage of Barthold, 158 Cal.App.4th 1301, 1310 (Cal. Ct. App. 2008) The new circumstances litigants are currently experiencing regarding COVID-19 have made communicating with the Courts much more challenging than usual, and crippled parties’ ability to pivot quickly and make effective, in-person arguments in response to tentative rulings. In the case of In Re Marriage of Barthold, the Respondent filed a motion for reconsideration based on a misunderstanding of what the Court would consider to be in dispute (an the Court upheld her motion): Kay filed a motion for reconsideration under section 1008. In support of the motion, Kay filed a declaration explaining that she had not realized, when she filed her original declaration, that there would be any dispute that the broker had in fact suggested the listing delay. She also supplied a declaration from the broker verifying that the delay was at the broker's recommendation, because the home was not "ready for showing and sale.” 3 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O In re Marriage of Barthold, 158 Cal. App.4th 1301, 1305-06 (Cal. Ct. App. 2008) Similarly, in the case at hand, Plaintiff thought that the only dispute the Court would consider to be at issue was whether or not Plaintiff had adequately pled facts sufficient to constitute a personal injury cause of action. Plaintiff was unaware that the Court might dispute the veracity of such a cause of action. In conformity with the governing statute, the circumstances Plaintiff (as well as many other litigants) has been faced with are new. Plaintiff was unable to anticipate a situation such as this would arise. For the foregoing reasons, Plaintiff contends his Motion for Reconsideration is proper and his Personal Injury Cause of Action should remain in the Complaint. A. Personal Injury Is A Recognized Cause Of Action And A Court Approved Alternate Theory Of Recovery During oral argument, Plaintiff was not able to physically present the Judicial Counsel form to the Court. Plaintiff’s counsel appeared telephonically, due to the COVID-19 pandemic, and had to no way to present electronic evidence to the Court during telephonic oral argument. The Judicial Council Form Complaint that Plaintiff presents in support of his Personal Injury Cause of Action is attached hereto as “Exhibit 1”. The form references CCP 425.12 in the bottom, right-hand corner. CCP 425.12 (a) states, “The Judicial Council shall develop and approve official forms for use in trial courts of this state for any complaint, cross-complaint or answer in any action based upon personal injury, property damage, wrongful death, unlawful detainer, breach of contract or fraud.” (emphasis added) The form is clearly designed for Personal Injury causes of action and was developed by California’s Judicial Council. 4 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O The following citations clearly demonstrate that a plethora of cases have been filed and argued as personal injury causes of action, and not denied based on the arguments Defendant made in its motion. “Boston filed a fifth amended verified complaint (FAC) against Binning alleging the following five causes of action: personal injury; warranty of habitability; negligence, fraud and deceit, and intentional misrepresentation... In summer 2016, a bench trial commenced on the two remaining causes of action, personal injury and conversion” Boston v. Barry, G0O54047, at *4, *5 (Cal. Ct. App. Sep. 26, 2018) We have concluded that just as the rule that personal actions abated on the death of the plaintiff compelled treating a spouse's cause of action for personal injuries differently from other community property in its devolution on the death of the other spouse, the rule prohibiting the assignment of such a cause of action compels the same disposition of the cause of action when the marriage is dissolved by divorce. Washington v. Washington, 47 Cal.2d 249, 252 (Cal. 1956) “[W]e nonetheless are constrained to conclude that J.J.'s cause of action for personal injuries accrued at the latest in early March 2011,” J.J. v. Cnty. of San Diego, D062594, at *12 (Cal. Ct. App. Feb. 14, 2014) Pursuant to CCP 335.1, “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” The statute clearly states that injury to an individual (personal injury) is actionable. 5 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O “A claim for damages for personal injuries belongs exclusively to the person injured and it does not survive him.” Franklin v. Franklin, 67 Cal. App. 2d 717, 726 (1945) In light of this judicially recognized evidence and the many authorities supporting it, Plaintiff’s Personal Injury Cause of Action should survive. B. Plaintiff Is Allowed to Plead Alternate Theories of Recovery In case there is any doubt, Plaintiff is allowed to plead alternate theories of recovery for his injuries. The Courts have long recognized that Plaintiffs “should not be deprived of ... plead[ing] alternative theories of recovery”. Brown v. Superior Court, 37 Cal. 3d 477, 486 (Cal. 1984) “A plaintiff acting in good faith may safely sue on alternative theories after full disclosure to counsel when he possesses a reasonable belief in the validity of each of those theories.” Crowley v. Katleman, 8 Cal. 4th 666, 678 (Cal. 1994) As demonstrated with the Form Complaint Exhibit, Plaintiffs cause of action is a valid theory of recovery and should withstand Defendant’s Motion for Judgment on the Pleadings. B. Plaintiff Will Amend His Complaint to Bolster His Personal Injury Cause of Action. In its Order, the Court gave Plaintiff leave to amend several causes of action. Plaintiff should be allowed to amend his Personal Injury Cause of Action, as well. The Court generally favors amended pleadings. “[I]f there is a reasonable possibility that a defect in the complaint can be cured by amendment or that the pleading liberally construed can state a cause of action, a demurrer should not be sustained without leave to amend.” Streicher v. Tommy's Electric Co., 164 Cal.App.3d 876, 884 (Cal. Ct. App. 1985) Courts prefer to give litigants an opportunity to amend their pleadings in the interests of justice. Plaintiff intends to amend his Complaint accordingly and will also amend his Personal Injury Cause of Action at the direction of the Court if the Court allows it. 6 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O IV. CONCLUSION Plaintiff’s Personal Injury Cause of Action is a foundational element of his Complaint and is a soundly, validly pled cause of action. For the reasons enumerated above, Plaintiff respectfully requests the Court reconsider its ruling, grant Plaintiff’s Motion for Reconsideration, and allow the cause of action to be amended or to remain as it is currently pled. Respectfully submitted, Dated: July 13, 2020 JHK LAW GROUP, APLC By:__Jae Kim JAE H. KIM ESQ. Attorney for Plaintiff Alexis Atherton 7 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O EXHIBIT 1 8 MOTION FOR RECONSIDERATION PLD-PI-001 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): TELEPHONE NO.: FAX NO. (Optional): E-MAIL ADDRESS (Optional): ATTORNEY FOR (Name): SUPERIOR COURT OF CALIFORNIA, COUNTY OF STREET ADDRESS: MAILING ADDRESS: CITY AND ZIP CODE: BRANCH NAME: FOR COURT USE ONLY PLAINTIFF: DEFENDANT: [J] DOES1TO COMPLAINT- Personal Injury, Property Damage, Wrongful Death CASE NUMBER: [| AMENDED (Number): Type (check all that apply): [_] MOTOR VEHICLE [| OTHER (specify): [| Property Damage [| Wrongful Death [|] Personal Injury [| Other Damages (specify): Jurisdiction (check all that apply): [_] ACTION IS A LIMITED CIVIL CASE Amountdemanded [| does not exceed $10,000 [|] exceeds $10,000, but does not exceed $25,000 [] ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) [|] ACTION IS RECLASSIFIED by this amended complaint [|] from limited to unlimited [|] from unlimited to limited 1. Plaintiff (name or names): alleges causes of action against defendant (name or names): 2. This pleading, including attachments and exhibits, consists of the following number of pages: 3. Each plaintiff named above is a competent adult a. [__] except plaintiff (name): (1) [__] a corporation qualified to do business in California (2) [__] an unincorporated entity (describe): (3) [__] a public entity (describe): (4) J] aminor [| an adult (a) [__] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) [__] other(specify): (5) [_] other (specify): b. [] except plaintiff (name): (1) [_] a corporation qualified to do business in California (2) [__] an unincorporated entity (describe): (3) [__] a public entity (describe): (4)[ J] aminor [__] an adult (a) [__] for whom a guardian or conservator of the estate or a guardian ad litem has been appointed (b) [J other (specify): (5) [_] other(specify): [] Information about additional plaintiffs who are not competent adults is shown in Attachment 3. Page 1 of 3 Form Approved for Optional Use COMPLAINT-Personal Injury, Property J udicial Council of California PLD-PI-001 [Rev. | anuary 1, 2007] Damage, Wrongful Death Code of Civil Procedure, § 425.12 www.courts.ca.gov PLD-PI-001 SHORT TITLE: CASE NUMBER: 4. [7] Plaintiff (name): is doing business under the fictitious name (specify): and has complied with the fictitious business name laws. 5. Each defendant named above is a natural person a. [| exceptdefendant(name): (1) [1 a business organization, form unknown (2) [__] a corporation (3) [__] an unincorporated entity (describe): (4) [J a public entity (describe): (5) [__] other(specify): b. [_] exceptdefendant(name): (1) 1] a business organization, form unknown (2) [1] a corporation (3) [__] an unincorporated entity (describe): (4) [__] a public entity (describe): (5) [__] other(specify): c. [__] exceptdefendant(name): (1) [1] a business organization, form unknown (2) [__] a corporation (3) [__] an unincorporated entity (describe): (4) [__] a public entity (describe): (5) [__] other(specify): d. [__] except defendant(name): (1) [1] a business organization, form unknown (2) [__] a corporation (3) [__] an unincorporated entity (describe): (4) [1] a public entity (describe): (5) [__] other (specify): [1] Information about additional defendants who are not natural persons is contained in Attachment 5. 6. The true names of defendants sued as Does are unknown to plaintiff. a. [___] Doe defendants (specify Doe numbers): were the agents or employees of other named defendants and acted within the scope of that agency or employment. b. [_] Doe defendants (specify Doe numbers): are persons whose capacities are unknown to plaintiff. 7. [___]Defendants who are joined under Code of Civil Procedure section 382 are (names): 8. This courts the proper court because a. [| atleastone defendant now resides in its jurisdictional area. b. [1] the principal place of business of a defendant corporation or unincorporated association is in its jurisdictional area. c. [__] injury to person or damage to personal property occurred in its jurisdictional area. d. [_] other(specify): o . [__] Plaintiff is required to comply with a claims statute, and a. [1] has complied with applicable claims statutes, or b. [_] is excused from complying because (specify): PLD-PI-001 [Rev. January 1, 2007] COMPLAINT-Personal Injury, Property Page 2 of 3 Damage, Wrongful Death PLD-PI-001 SHORT TITLE: CASE NUMBER: 10. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): a. [|] Motor Vehicle b. [__] General Negligence c. [__] Intentional Tort d. [__] Products Liability e. [__] Premises Liability f [| other (specify): 11. Plaintiff has suffered a. [__] wage loss b. [__] loss of use of property . [__] hospital and medical expenses . [__] general damage . [__] property damage [| loss of earning capacity . [_] other damage (specify): SH 0 ao 0 12. ] The damages claimed for wrongful death and the relationships of plaintiff to the deceased are a. [| listed in Attachment 12. b. [1] as follows: 13. The relief sought in this complaint is within the jurisdiction of this court. 14. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. (1)[__] compensatory damages (2) [1] punitive damages The amount of damages is (in cases for personal injury or wrongful death, you must check (1)): (1) [_] according to proof (2) [__] in the amount of: 15.[_]The paragraphs of this complaint alleged on information and belief are as follows (specify paragraph numbers): Date: (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) PLD-PI-001 [Rev. | anuary 1, 2007] COMPLAINT-Personal Injury, Property Page 3 of 3 Damage, Wrongful Death For your protection and privacy, please press the Clear _ E- _ : _ _ This Form button after you have printed the form. Print this form | | Save this form | Clear this form © 00 JN 6 o w hd o H D O N D N D N D N D N D N D N DN H E E E E E © J 6 O A R W N BR O O © m 0 U h W N H O PROPOSED ORDER Plaintiff’s Motion for Reconsideration was heard before the Court on And the Court made the following ruling: IT IS SO ORDERED. Superior Court Judge 9 MOTION FOR RECONSIDERATION © 00 JN 6 o w hd o H D O N D M N D N D N D N D N DN H E E E m E 0 0 J O&O O t = W DN +H O O © 00 J Oo O t k= Ww N N += Oo PROOF OF SERVICE I declare that I am over the age of eighteen (18) and I am not a party to the entitled action. I am employed in the county of Los Angeles, State of California; my business address is 16 N. Marengo Ave. Suite 418, Pasadena, CA 91101. On the date indicated below, I served the following document(s) on the interested parties by serving a true and correct copy of each document thereof as follows: PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR RECONSIDERATION RE: MOTION FOR JUDGMENT ON THE PLEADINGS; DECLARATION OF JAE KIM On: Harry Safarian The Safarian Firm 3150 Montrose Ave. Glendale, CA hs@safarianfirm.com 0 I am familiar with the business’ practice for the collection and processing of correspondence for mailing with the United States Postal Service (USPS). The envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in Pasadena, CA. 0 By Overnight Courier, I caused the above-referenced document(s) to be delivered to an overnight courier service (Federal Express), for delivery to the recipient (s). X By email, I caused the above-referenced document(s) to be transmitted to the recipient (s) hs @safarianfirm.com; ck @safarianfirm.com I declare under the penalty of perjury under the laws of the State of California, that the foregoing is true and correct, and that this Proof of Service was executed on July 13, 2020, at Pasadena, California. Angela McArdle Angela McArdle 10 MOTION FOR RECONSIDERATION
