XXXX
[ENTER ADDRESS]
Plaintiff in Pro Per
SUPERIOR COURT OF THE STATE OF XXX FOR THE COUNTY OF XXX
XXX,
Plaintiff
vs.
XXX
Defendant
Case No.: XXX
Judge: XXX
Dept: 31
NOTICE OF MOTION; MOTION FOR
RECONSIDERATION OF THE
TENTATIVE ORDER DENYING
DEFENDANT’S MOTION TO DISMISS;
MEMORANDUM IN SUPPORT; AND
DECLARATION IN SUPPORT
NOTICE OF MOTION
To Toby Wank and to all Attorneys of Record:
Please TAKE NOTICE that on [ENTER DATE], at [ENTER TIME] or soon thereafter,
the Plaintiff herein will move this Court, in Department 31 to Reconsider its Tentative Order
Denying Defendant’s Motion to Dismiss.
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MOTION FOR RECONSIDERATION
The Motion for Reconsideration will be based on the grounds that Plaintiff did not
include the correct party as Defendant because he was waiting for a Ruling on the Demand for a
Declaration of Policy Limits.
Further, the motion will be based on this Notice of Motion and the Memorandum set
forth below, the Plaintiff’s Declaration in Support, and on the records and file herein, and on
such evidence as may be presented at the hearing of the motions.
Dated: [ENTER DATE]
____________________________
SEAN RASHTI
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MOTION FOR RECONSIDERATION
SEAN RASHTI
[ENTER ADDRESS]
Plaintiff in Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
SEAN RASHTI,
Plaintiff
vs.
TOBY WANK
Defendant
Case No.: 19STCV42312
Judge: Honorable Thomas D. Long
Dept: 31
NOTICE OF MOTION; MOTION FOR
RECONSIDERATION OF THE
TENTATIVE ORDER DENYING
DEFENDANT’S MOTION TO DISMISS;
MEMORANDUM IN SUPPORT; AND
DECLARATION IN SUPPORT
MOTION FOR RECONSIDERATION
NOW COMES, SEAN RASHTI, Plaintiff, proceeding Pro Se, pursuant to Code of Civil
Procedure sections 1008(a), who hereby moves this Court to reconsider its tentative decision
Denying Defendant’s Motion to Dismiss entered on March 8, 2022.
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MOTION FOR RECONSIDERATION
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT FOR MOTION TO
RECONSIDERATION
The Defendant has failed to comply with the Plaintiff’s Discovery Requests and thus the
court should make an order that Defendant complies with Plaintiffs’ Request for the Production
of Documents and imposing a monetary sanction for the failure to respond.
A. RELEVANT PROCEDURAL BACKGROUND
On or about November XXX, Plaintiff filed a Complaint against the Defendant.
On or about January XXX the Defendant filed a Response to Plaintiff’s Complaint,
denying each and every allegation in Plaintiff’s Complaint. On the same date, the Defendant sent
Plaintiff a Demand for Exchange of Expert Witness Information. In the said Demand, the
Defendant requested that both parties send to the other party a list of the expert witnesses, and
any document and/or report made by the said expert witnesses.
On or about September XXX, Plaintiff, through Plaintiff’s former Attorney, filed a
“Request for Prior Pleadings” to the Defendant.
On or about October XXX, the Plaintiff responded to Defendant’s Form
Interrogatories Set One. In the said Response, Plaintiff duly responded with specificity to each
and every of Defendant’s interrogatories.
On February XXXX, the Plaintiff sent the Defendant a Request for Production of
Documents Set Two. Notably, the Plaintiff requested the Defendant to produce all documents
and other tangible things that support Defendant’s denial or special or affirmative defenses.
On or about March XXX, the Defendant sent the Plaintiff Objections to Plaintiff’s
Request for Production of Documents. In the objection, the Defendant alleged that the Plaintiff’s
request seeks to obtain privileged information and invade the attorney-client and work product
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MOTION FOR RECONSIDERATION
privileges. Defendant also alleged that the Plaintiff’s request was premature and that Defendant’s
affirmative defenses were made as a matter of right.
On April XXX, the Plaintiff’s former Attorney sent a Meet and Confer letter to the
Defendant. However, Defendant has since failed to meaningfully meet and confer.
Plaintiff then filed a Motion to Compel the Defendant to respond to Plaintiff’s Request
for Production of Documents Set Two.
On or about January XXX, XXX, Defendant’s attorney, filed a Stipulation & order
to proceed against estate and limit Recovery to insurance policy Limits. In the said document,
the Defendant alleged that Defendant Toby Wank was insured under an automobile liability
policy with State Farm Mutual Automobile Insurance Company with a per person limit of
$250,000. The document further stated that the policy provided coverage for the subject claim in
the event Toby Wank was found wholly or partially responsible for the incident.
Interestingly, the Defendants notified the Plaintiff that Defendant Toby Wank had died
on or about January XXX, about a year later when the proposed Stipulation was being sent to
Plaintiff.
In that regard, the proposed stipulation provided that the matter be held against the
Defendant’s estate pursuant to Probate Code section 550, et seq, and that the recovery of any
claim under the action be limited to the said policy limit of $250,000.
However, the total damages suffered by Plaintiff surpass the said policy limit. The
Plaintiff must undergo surgery scheduled in May XXX, which Cost $170,000. Consequential to
the injury, Plaintiff can only sleep for between 2 to 4 hours every night. His ear rings all day
from cervical instability; and he has neck, shoulder and other roaming pains. Notably, the
uncorrected space changes in Plaintiff’s Cervical vertebrae from the tendon tear from the dorsal
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MOTION FOR RECONSIDERATION
spinous process of T1, which allows Cervical Vertebrae 1-7 to fall forward into the spinal canal.
The cervical instability cannot be relieved without an advanced neuro/orthopedic surgery.
Notably, as a result of the cervical instability, Plaintiff has current chronic problems including:
i. Roaming pains without warning;
ii. Severe visual blurriness for 2 years now;
iii. Tinnitis for 3 years now;
iv. Dizziness,
v. Vertigo,
vi. Balance difficulty (having to take a step or fall to the right side);
vii. Swallowing difficulties (unable to swallow food or pills – associated to severe
pain on swallowing, peristalsis disturbance and immotile esophagus);
viii. Consistent paresthesia of upper extremity causing dropping of objects, and
sleep disturbances;
ix. Feeling of sudden loss of consciousness;
x. Strange outer body experiences;
xi. Severe anxiety attacks; and
xii. Cognitive impairments.
The Plaintiff had also spent $80,000 in incidental medical expenses, partially out of
Plaintiff’s own pocket. It is also worth noting that the Insurance Neurologist is aware of the
Plaintiff’s injuries. Plaintiff’s injuries have also borne a heavy toll on the patenting and
manufacturing of Plaintiff’s dental products.
On or about February XXX, the Defendant’s attorney filed a Motion to Dismiss
Plaintiff’s Complaint. The Defendant’s attorney avers that Plaintiff has not exhausted two
options. First Defendant’s attorney alleges that Plaintiff has failed to continue the action against
the Defendant’s personal representative. Defendant argues that Plaintiff’s Complaint should
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MOTION FOR RECONSIDERATION
reflect that the Plaintiff is suing the Estate of the Defendant. Next, Defendant’s attorney alleged
that Plaintiff failed to continue the action pursuant to Probate Court section 550, which limits
recovery to available insurance proceeds. Accordingly, Defendant’s attorney maintains that
Plaintiff includes the Personal Representative of Defendant’s Estate, and files the claim in
compliance with section 9390. Defendant’s attorney also alleges that Plaintiff’s recovery should
be limited for alleged failure to effect the said changes on Plaintiff’s Complaint.
In response to Defendant’s motion to dismiss, Plaintiff filed a demand for Declaration of
Policy Limits, in which Plaintiff also made arguments in response to the Defendant’s Motion to
Dismiss.
On March XXX, this Court issued a Tentative Order dismissing Defendant’s Motion to
Dismiss. The Court stated inter alia, that the Defendant’s Motion was unopposed; and that
Plaintiff has not stipulated to proceed pursuant to Probate Code § 550, nor substituted a proper
party into the action in place of Defendant.
Plaintiff therefore files this Motion explaining the delay in substituting the correct party a
Defendant in the case.
LEGAL ARGUMENT
A. THIS COURT HAS THE STATUTORY POWER TO RECONSIDER A PRIOR
ORDER AND MODIFY, AMEND OR REVOKE THE ORDER
Code of Civil Procedure § 1008(a) states that “When an application for an order has been
made to a judge, or to a court, and refused in whole or in part, or granted, or granted
conditionally, or on terms, 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 or court that made the order, to
reconsider the matter and modify, amend, or revoke the prior order. The party making the
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MOTION FOR RECONSIDERATION
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.”
Plaintiff was served with written notice of entry of the tentative order on [ENTER
DATE]. However, Plaintiff could not file this Motion at the required time because he was
organizing the right strategy for his case against Defendant, so as to avoid the case being
dismissed. Plaintiff requests this Court to grant him leave to file this Motion Nunc Pro Tunc.
Besides, the Order issued was tentative. No notice of entry of the Final order was ever
brought to Plaintiff’s attention. Thus, the 10-day requirement imposed by Code of Civil
Procedure section 1008, subdivision (a) is inapplicable. “The 10 day period begins running when
the moving party has been served with the order." See Novak v. Fay, (2015) 236 Cal. App. 4th
329, 335-336.
This court has jurisdiction to reconsider a prior ruling. A decision on a motion is not res
judicata, and a trial court has jurisdiction to reconsider a prior ruling or to entertain a renewal of
a previous motion. See Stephen v. Enterprise Rent-A-Car (1991) 235 Cal. App. 3d 806, 816; see
also Curtin v. Koskey (1991) 231 Cal. App. 3d 873, 876 and Graham v. Hansen (1982) 128 Cal.
App. 3d 965, 970.
B. THIS COURT SHOULD RECONSIDER ITS PRIOR ORDER BECAUSE THE
MOVING PARTY HAS MADE A SUFFICIENT SHOWING OF
CIRCUMSTANCES
Probate Code Sections 550 and 552 provide that an action against a deceased person,
where the plaintiff seeks recovery of insurance proceeds only, may be filed against “the Estate of
[Decedent].” Summons shall then be served on the insurer, not any estate representative.
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MOTION FOR RECONSIDERATION
Code of Civil Procedure Section 377.40 states: “Subject to Part 4 (commencing with
Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action
against a decedent that survives may be asserted against the decedent’s personal representative
or, to the extent provided by statute, against the decedent’s successor in interest.”
Plaintiff did not immediately substitute Defendant because he was waiting for a ruling on
his Request for a Declaration of the Policy Limits of the Defendant. Plaintiff wanted to be sure of
the policy limits so that he may know whether to sue the Estate of the Personal Representative or
Successor in Interest of the Defendant. Notably, on or about January XXX, XXX,
Defendant’s attorney, filed a Stipulation & order to proceed against estate and limit Recovery to
insurance policy Limits. In the said document, the Defendant alleged that Defendant Toby Wank
was insured under an automobile liability policy with State Farm Mutual Automobile Insurance
Company with a per person limit of $250,000. The document further stated that the policy
provided coverage for the subject claim in the event Toby Wank was found wholly or partially
responsible for the incident.
The Defendants further notified the Plaintiff that Defendant Toby Wank had died on or
about January 9, 2021, about a year later when the proposed Stipulation was being sent to
Plaintiff. For over a year, Plaintiff was left in the dark concerning the death of the Defendant. In
that regard, the proposed stipulation provided that the matter be held against the Defendant’s
estate pursuant to Probate Code section 550, et seq, and that the recovery of any claim under the
action be limited to the said policy limit of $250,000. However, Plaintiff’s injuries surpassed the
said policy limits, as already alleged above.
Plaintiff therefore needed a declaration from the Defendant, of the Defendant’s Policy
Limits, after which Plaintiff would proceed to decide the correct party to sue, and substitute the
party accordingly.
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MOTION FOR RECONSIDERATION
This Court should therefore reconsider its prior order due to the extent that it stated that
Plaintiff had not substituted the correct party. Plaintiff asserts that he has made a sufficient
showing of circumstances that justify the reconsideration.
Accordingly, Plaintiff requests that the Order be modified and/or reconsidered to reflect
that Plaintiff did not substitute the Defendant after Defendant’s death, because Plaintiff was still
not sure which party to sue: whether the Estate of the Defendant or the Defendant’s Personal
Representative of the Successor in Interest.
Further, the circumstance is material in that it will influence whether Plaintiff would be
entitled to damages that surpass the insurance coverage of the deceased Defendant.
CONCLUSION
WHEREFORE, Plaintiff requests this Court grant the following Order(s):
1. THAT the Court reconsiders its Tentative Decision dismissing Defendant’s
Motion to Dismiss to the extent that it stated that Plaintiff failed to substitute the
Defendant as required by the law; and that Plaintiff had not responded to the
Defendant’s Motion to Dismiss;
2. THAT this Court grant Plaintiff’s request to file this Motion for Reconsideration
Nunc Pro Tunc;
3. THAT this Court grant any other Order it deems just.
DATED:
Respectfully submitted,
____________________________
XXX
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MOTION FOR RECONSIDERATION
XXX
[ENTER ADDRESS]
Plaintiff in Pro Per
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MOTION FOR RECONSIDERATION
SUPERIOR COURT OF THE STATE OF XXX
FOR THE COUNTY OF XXX
XXX,
Plaintiff
vs.
XXX
Defendant
Case No.: XXX
Judge: XXX
Dept: 31
NOTICE OF MOTION; MOTION FOR
RECONSIDERATION OF THE
TENTATIVE ORDER DENYING
DEFENDANT’S MOTION TO DISMISS;
MEMORANDUM IN SUPPORT; AND
DECLARATION IN SUPPORT
DECLARATION IN SUPPORT OF PLAINTIFF’S MOTION FOR
RECONSIDERATION
I, XXX, declare
1. On or about November XXX, Plaintiff filed a Complaint against the Defendant.
2. On or about January XXX,XXX, Defendant’s attorney, filed a Stipulation & order
to proceed against estate and limit Recovery to insurance policy Limits. In the said
document, the Defendant alleged that Defendant Toby Wank was insured under an
automobile liability policy with State Farm Mutual Automobile Insurance Company with
a per person limit of $250,000. The document further stated that the policy provided
coverage for the subject claim in the event Toby Wank was found wholly or partially
responsible for the incident.
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MOTION FOR RECONSIDERATION
3. Defendants notified the Plaintiff that Defendant Toby Wank had died on or about January
9, 2021, about a year later when the proposed Stipulation was being sent to Plaintiff.
4. The proposed stipulation provided that the matter be held against the Defendant’s estate
pursuant to Probate Code section 550, et seq, and that the recovery of any claim under the
action be limited to the said policy limit of $250,000.
5. The total damages suffered by Plaintiff surpass the said policy limit.
6. Plaintiff could not file this Motion at the required time because he was organizing the
right strategy for his case against Defendant, so as to avoid the case being dismissed.
7. Plaintiff did not immediately substitute Defendant because he was waiting for a ruling on
his Request for a Declaration of the Policy Limits of the Defendant. Plaintiff wanted to be
sure of the policy limits so that he may know whether to sue the Estate of the Personal
Representative or Successor in Interest of the Defendant.
8. The Defendants further notified the Plaintiff that Defendant Toby Wank had died on or
about January 9, 2021, about a year later when the proposed Stipulation was being sent to
Plaintiff. For over a year, Plaintiff was left in the dark concerning the death of the
Defendant.
9. Plaintiff therefore needed a declaration from the Defendant, of the Defendant’s Policy
Limits, after which Plaintiff would proceed to decide the correct party to sue, and
substitute the party accordingly.
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
____________________________XXX
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MOTION FOR RECONSIDERATION
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], a copy of the foregoing document has been
sent to the Defendant in the following address:
[ENTER ADDRESSES FOR DEFENDANT].
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MOTION FOR RECONSIDERATION
DATED:
____________________________
XXX
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