Personal Injury Lawyer Blog
(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)
Plaintiffs’ Opposition to Dr. David XY’s Demurrer to Fourth Amended Complaint; Memorandum of Points and Authorities.
MEMORANDUM OF POINTS AND AUTHORITIES
THIS COURT LACKS JURISDICTION TO RULE ON DEFENDANTS’ DEMURRERS TO CAUSES OF ACTION ONE AND EIGHT
All Defendants in this action filed Demurrers to Plaintiffs’ Second Amended Complaint (SAC). Their moving papers included Demurrers to Plaintiffs’ First Cause of Action for Wilful Misconduct and Plaintiffs’ Eighth Cause of Action for Negligence. Hearing on the Demurrers took place on June 26, 2008, the Honorable Madeline King presiding. The court overruled all defendants’ Demurrers to plaintiffs first and eighth causes of action. A Notice of Ruling was served on all parties on June 27,2008. Defendant Dr. XY did not file an Objection to the Notice of Ruling. Plaintiffs’ respectfully request that this court take Judicial Notice under Evid Code § 452 (d) of the Notice of Ruling served by plaintiffs wherein item number 3 specifically states that all parties Demurrers to Causes of Action One and Eight were overruled. Plaintiffs further request that the court take Judicial Notice of the Minute Order from the June 26, 2008 hearing.
A. This Court Lacks Jurisdiction Under C.C.P. § 1008.
Code of Civil Procedure § 1008 forbids trial courts from reconsidering orders previously entered by the judge-either their own or those made by other judges–unless made according to this section. Bennett v. Suncloud, (1997) 56 Cal App. 91. Code of Civil Procedure § 1008 provides in part:
a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part,…any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge… to reconsider the matter and modify, amend, or revoke the prior order….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. …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.
The moving party failed to apply for reconsideration of the Court’s ruling in the time specified by statute, and as such, this Court has no jurisdiction to consider Defendant XY’s Demurrer to Plaintiffs’ First Cause of Action for Wilful Misconduct nor to Plaintiff’s eighth cause of action for Negligence. Further, defendants have not alleged that new facts plead in Plaintiffs’ Fourth Amended Complaint qualifies their moving papers to be reconsidered. But even if they had done so, this Court has no jurisdiction under CCP § 1008 to consider such arguments.
For these reasons, this Court has no authority and lacks jurisdiction to modify or change its ruling of June 26, 2008, where Defendants’ Demurrers to Plaintiffs’ First Cause of Action for Wilful Misconduct and Eighth Cause of Action for Negligence were overruled. (See Part 2 of 8.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.