Jason Welsh vs Fiore Management Inc

Case Number

22CV00597

Case Type

Hearing Date / Time

Fri, 03/15/2024 - 10:00

Nature of Proceedings

Motion to Be Relieved as Counsel; Motion for Summary Judgment

Tentative Ruling

Jason Welsh v. Fiore Management, Inc.

Case No. 22CV00597          

Hearing Date: March 15, 2024                                               

HEARING:              (1)       Motion of Counsel for Defendant to be Relieved as Counsel

                             (2)       Motion of Plaintiff for Summary Judgment

ATTORNEYS:        For Plaintiff Jason Welsh: Self-represented

                                    For Defendant Fiore Management, Inc.: Frederick Warren Strasser, FW Strasser Associates LLC

                                   

TENTATIVE RULING:

(1)       For the reasons set forth herein, the hearing on the motion of counsel for defendant Fiore Management, Inc., attorney Frederick Warren Strasser, is continued to April 26, 2024. Attorney Strasser shall serve the moving papers together with this ruling continuing the hearing on Fiore Management on or before April 5, 2024, and shall file proof of such service on or before April 19, 2024.

(2)       For the reasons set forth herein, the motion of plaintiff Jason Welsh for summary judgment is denied.

Background:

On February 15, 2022, petitioner Jason Welsh filed his petition pursuant to Corporations Code section 17711.06 to determine the fair value of Welsh’s membership interest.

On May 23, 2022, Welsh additionally filed a complaint asserting a cause of action for breach of contract and for violation of his dissenter’s rights.

On December 15, 2022, defendant Fiore Management, Inc., (Fiore) filed its general denial (answer) to the complaint, generally denying the allegations thereof and asserting one affirmative defense.

On July 28, 2023, Welsh filed his first motion for summary judgment. The court denied this motion on November 3, 2023, because Welsh had failed to meet his initial burden.

On November 6, 2023, Welsh filed this second motion for summary judgment. This motion was originally set for hearing on February 9, 2024.

On December 27, 2023, attorney Frederick Strasser filed his motion to be relieved as counsel for defendant Fiore.

On February 9, 2024, the court continued the motion for summary judgment to this hearing date.

No opposition or other response to either motion has been filed.

Also set at the same time as the hearing on this motion is a case management conference.

Analysis:

(1)       Motion For Relief As Counsel

Attorney Strasser, counsel for Fiore, has presented good cause to be relieved as counsel. However, no proof of service on any person, including Fiore, of the motion has been filed with the court or is attached to any document filed or lodged by Strasser. The Notice of Motion states that the motion is supported by a “Proof Of Service,” but no proof of service is attached. (Motion, at ¶ 3.) Strasser’s declaration in support of the motion states that “[t]he Receiver has been notified of the filing of this motion and will be served pursuant to the rules.” (Strasser decl., ¶ 10.) This statement’s use of the future tense strongly implies that service was not made contemporaneously with the filing of the motion and no proof of service is attached to the declaration.

“The notice of motion and motion, the declaration, and the proposed order must be served on the client and on all other parties who have appeared in the case. The notice may be by personal service, electronic service, or mail.” (Cal. Rules of Court, rule 3.1362(d).) “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).)

Because no proof of service has been filed with the court (timely or otherwise), the court will continue the hearing on the motion to be relieved as counsel to permit the filing of a proof of service complying with rule 3.1362(d).

Counsel for Fiore shall give notice of this continued hearing and this ruling, including notice to Fiore itself.

(2)       Motion for Summary Judgment

This is plaintiff Welsh’s second motion for summary judgment. The court denied the first motion for summary judgment based upon both Welsh’s failure to meet his initial burden of proof and Welsh’s failure to comply with the requirements for a supporting separate statement.

Welsh filed this second motion three days after the denial of the first motion.

“A party who originally made an application for an order which was refused in whole or part, … may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion.” (Code Civ. Proc., § 1008, subd. (b).)

“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.” (Code Civ. Proc., § 1008, subd. (e).)

The requirements of Code of Civil Procedure section 1008 apply to motions for summary judgment. (Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391.)

“The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. [Citation.] Case law after the 1992 amendments to section 1008 has relaxed the definition of ‘new or different facts,’ but it is still necessary that the party seeking that relief offer some fact or circumstance not previously considered by the court.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212–213.)

Welsh filed the following papers in support of this second motion: (1) Plaintiff’s Motion for Summary Judgment; (2) Memorandum in Support of Plaintiff’s Motion for Summary Judgment; (3) Plaintiff’s Statement of Material Facts as to Which There is no Genuine Issue; and (4) Plaintiff’s Declaration Regarding Meet and Confer. (See also Proof of Electronic Service, filed Nov. 6, 2023.) None of these documents satisfies the requirements of section 1008.

The Motion consists of one paragraph stating that plaintiff moves for an order granting summary judgment. The Memorandum in Support consists of legal argument in support of the grant of summary judgment. Attached to the Memorandum in Support is its exhibit A, which is a verified discovery response from Fiore. Plaintiff’s Statement of Material Facts consists of a list of facts but attaches no declaration or other evidence. Plaintiff’s declaration states only that Welsh met and conferred with counsel for Fiore to discuss the exhibit A discovery response and Welsh’s intention to file a motion for summary judgment. (Welsh decl., dated Nov. 6, 2023, ¶ 2.) None of these documents contain a declaration from Welsh explaining “what new or different facts, circumstances, or law are claimed to be shown.” It appears that there are no new or different facts presented. Indeed, Welsh even argues that the only new document, exhibit A which is itself dated prior to the hearing on the first motion for summary judgment, is “entirely inadequate and intentionally misleading.” (Memorandum in Support, at p. 2.)

Welsh has not complied with Code of Civil Procedure section 1008 to make a renewed motion for summary judgment. The motion will therefore be denied as procedurally improper.