Opinion
B239699
05-15-2012
TOPAZ SUMMERFIELD et al., Plaintiff and Appellant, v. EDWARD ELIO GALANTE, Defendant and Respondent.
Pircher, Nichols & Meeks and James L. Goldman, and Jay L. Stein, for Plaintiff and Appellant. Randolph & Associates, Gary L. Bostwick and Donald C. Randolph for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC291148)
APPEAL from a judgment of the Superior Court of Los Angeles County, Mel Red Recana, Judge. Reversed.
Pircher, Nichols & Meeks and James L. Goldman, and Jay L. Stein, for Plaintiff and Appellant.
Randolph & Associates, Gary L. Bostwick and Donald C. Randolph for Defendant and Respondent.
Plaintiff, S.S., appeals from a March 7, 2012 judgment on her false arrest and imprisonment claims. S.S. appears through a guardian ad litem and plaintiff, Topaz Summerfield. Summary judgment against S.S. was secured by defendant, Edward E. Galante. On March 14, 2012, we issued peremptory writ of mandate as to a summary adjudication order in favor Ms. Summerfield. We ordered the summary adjudication order be set aside because there was noncompliance with Code of Civil Procedure section 1008. (Summerfield v. Superior Court (Apr. 20, 2012, B239590 [nonpub. opn].) The March 7, 2012 summary judgment entered against S.S. was in response to the same exact same motion filed against Ms. Summerfield. In the writ proceeding, we received a request to also take action in this case from Ms. Summerfield's lawyer. We then issued an order to show cause re: summary reversal as to this case, allowed briefing and set the matter for oral argument. We reverse.
Our analysis closely parallels that in the mandate case involving Ms. Summerfield. The complaint was filed on February 27, 2003, and contains false imprisonment, malicious prosecution, intentional severe emotional distress infliction and defamation claims. Sometime in 2005, defendant filed a summary judgment and adjudication motion. Defendant asserted the false imprisonment cause of action was without merit because his conduct was privileged. Defendant reasoned Ms. Summerfield's arrest and S.S.'s ensuing incarceration resulted from an arrest warrant issued by the High Court of Zimbabwe. The reply maintained the affidavit in support of the arrest warrant was sufficient to immunize defendant from liability. The summary judgment and adjudication motion was denied on July 14, 2005. The case proceeded to trial and we reversed the ensuing judgment on October 11, 2007. (Summerfield v. Galante (Oct. 11, 2007, B188741) [nonpub. opn.].) Further, we recently reversed an order denying a special motion to strike a false imprisonment claim against one of defendant's attorneys, Donald C. Randolph. (Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 129-130.) This is in addition to the April 20, 2012 opinion which granted Ms. Summerfield's mandate petition.
On November 5, 2010, defendant filed a second summary judgment and adjudication motion; the one that is the subject of this appeal. The second summary judgment and adjudication motion argued defendant's conduct was subject to the Civil Code section 47, subdivision (b) privilege. Plaintiffs expressly objected to the second summary judgment and adjudication motion on the ground it was an improper reconsideration request. Plaintiffs argued the second summary judgment and adjudication motion failed to comply with the Code of Civil Procedure section 1008 procedural requirements. Only two declarations were filed in support of the second summary judgment and adjudication motion. Neither declaration addressed the existence of new facts, circumstances or law sufficient to permit renewal of the prior July 14, 2005 denial of the first summary judgment and adjudication motion.
A motion which is denied cannot be renewed unless the second request is accompanied by a declaration setting forth new facts, circumstances or law. (Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1048-1049; see Code Civ. Proc., § 1008, subd. (a) ["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"]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) ¶ 9:323.1, p. 9(1)-124 (rev. # 1, 2011).) Thus, the trial court did not have the jurisdiction to issue its order granting summary adjudication. (Code Civ. Proc., § 1008, subd. (e) ["This section specifies the court's jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section"]; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 691.)
There is no merit to defendant's analysis appearing in his response to the order to show cause re: summary reversal. First, the renewed motion could not be considered merely because it involved new facts and laws. As noted, defendant did not comply with the jurisdictional requirement the motion include a declaration listing the matters set forth in Code of Civil Procedure section 1008, subdivision (a). (Branner v. Regents of University of California, supra, 175 Cal.App.4th at pp. 1048-1049.) In the absence of such a declaration, the privilege issue could not be reconsidered. We need not address the question of whether defendant's alleged "new" facts or law in fact constitute a different argument on the privilege issue. The fact an amended complaint is involved changes nothing.
Second, the trial court did not raise the privilege issue on its own motion. Defendant relies on discussions held at hearings on December 5, and 8, 2011. Our Supreme Court has explained: "Unless the requirements of section 437c, subdivision (f)(2), or 1008 are satisfied, any action to reconsider a prior interim order must formally begin with the court on its own motion. To be fair to the parties, if the court is seriously concerned that one of its prior interim rulings might have been erroneous, and thus that it might want to reconsider that ruling on its own motion-something we think will happen rather rarely-it should inform the parties of this concern, solicit briefing, and hold a hearing. (See Abassi v. Welke[(2004)] 118 Cal.App.4th [1353,] 1360 ['The trial court invited Welke to file a second summary judgment motion indicating it wanted to reassess its prior ruling . . . . The parties had an opportunity to brief the issue, and a hearing was held.']; Schachter v. Citigroup, Inc.[(2005)] 126 Cal.App.4th [726,] 739.) Then, and only then, would a party be expected to respond to another party's suggestion that the court should reconsider a previous ruling. This procedure provides a reasonable balance between the conflicting goals of limiting repetitive litigation and permitting a court to correct its own erroneous interim orders." (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108-1109; see Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233,l 1239, 1248-1250 ["Montegani v. Johnson (2008) 162 Cal.App.4th 1231, 1238 [after trial court determined it should reconsider an interim order in light of intervening case law, it informed the parties of its concern, requested briefing, and held a hearing"]].) Nothing of the sort occurred here. The second summary judgment and adjudication motion was filed on November 5, 2010. The trial court did not state it was reconsidering the initial July 14, 2005 ruling during the hearings on its own motion on December 5 and 8, 2011.
The judgment is reversed. Topaz Summerfield, S.S.'s guardian ad litem, may recover the costs incurred on appeal from defendant, Edward E. Galante.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
KRIEGLER, J.