MOTION FOR RECONSIDERATION

XXX

XXX

XXX

SUPERIOR COURT OF THE STATE OF XXX

COUNTY OF XXX

XXX,
Plaintiff,
v.
XXX MEMORIAL HOSPITAL
PRESBYTERIAN; and XXX, in his official and individual
capacity,
Defendants.

Case No.: XXX

MOTION FOR RECONSIDERATION
Department: XXX

NOTICE TO DEFENDANTS XXX MEMORIAL HOSPITAL PRESBYTERIAN,
HERBERT CONRAD AND TO THEIR ATTORNEY(S) OF RECORD AND SPECIAL
NOTICE TO THIS HONORABLE COURT:
NOTICE IS HEREBY GIVEN that Plaintiff XXX, at the venue indicated or at
such other venue as the court shall prescribe, will move this Court to Reconsider its Tentative
Order Denying Plaintiff’s Motion for Summary Judgment and its decision denying Plaintiff‘s
Motion for Court Reporter and Fee Waiver.
This Motion will be based on the grounds that the Plaintiff is entitled to Summary
Judgment and a Court Reporter.

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MOTION FOR RECONSIDERATION

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.

Respectfully submitted,

______________________________
XXX

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MOTION FOR RECONSIDERATION

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT FOR MOTION TO

RECONSIDERATION

NOW COMES, EUN JUNG LIM, Plaintiff, proceeding Pro Se, pursuant to Code of Civil
Procedure sections 1008(a), who hereby moves this Court to reconsider its tentative decision
Denying Plaintiff’s Motion for Summary Judgment and its decision denying Plaintiff‘s Motion
for Court Reporter and Fee Waiver.
In support of this motion, the Plaintiff states as follows:
A. THIS COURT HAS THE STATUTORY POWER TO RECONSIDER ITS 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
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.”
In the instant action, Plaintiff accessed the tentative ruling on [ENTER DATE]. The
tentative ruling does not amount to a final Order. As a result since the Order is tentative, there
was no notice of entry of a Final order. 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.

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MOTION FOR RECONSIDERATION

Accordingly, this court has jurisdiction to reconsider its prior ruling. 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
i. The Plaintiff was prejudiced when a biased retired Judge heard the case
According to CCP § 170.6(a)(1), a judge shall not try a case if it is established that the
judge is prejudiced against a party or attorney. The said section 170.6 requires a different judge
to be assigned in lieu of the originally assigned one. See People v. Perez (2018) 4 Cal.5th 421,
439; accord, Peracchi v. Superior Court, 30 Cal.4th 1248 ("Section 170.6 permits a party in civil
and criminal actions to move to disqualify an assigned trial judge on the basis of a simple
allegation by the party or his or her attorney that the judge is prejudiced against the party.").
Prejudice may be established by the party or attorney “by an oral or written motion
without notice supported by affidavit or declaration under penalty of perjury or an oral statement
under oath’ that the judge is prejudiced against the party or attorney ‘so that the party or attorney
cannot or believes that he or she cannot have a fair and impartial trial’ before the judge”. See §
170.6, subd. (a)(2); Home Insurance v. Superior Court, 34 Cal.4th 1025, at 1031-1032.
It is Plaintiff’s averment that the presiding Judge, Richard Oberholzer was biased. The
Judge stated that his last day as the presiding judge in the case would be August 1, 2022.
However, the Judge went ahead to preside over the case, and in the course thereof, was biased
towards the Defendant’s side. The judge’s bias was exhibited when he issued the tentative ruling
before hearing Plaintiff’s Response to Defendant’s Opposition to Plaintiff’s Motion for
Summary Judgment. The judge also failed to address the Defendant’s failure to adhere to the 30-
day time limit set for responsive pleadings, and failed to address the Defendant’s frivolous

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MOTION FOR RECONSIDERATION

filings. As such, the Judge’s aforesaid conduct amounts to prejudice against Plaintiff, which is
against the interest of justice.

ii. The Plaintiff’s motion was not premature
Plaintiff asserts that the Motion for Summary Judgment was filed timely, and therefore
Plaintiff is entitled to a judgment as a matter of law. Courts will grant a Motion for Summary
judgment if the moving party is entitled to a judgment as a matter of law. See Code of Civil
Procedure § 437c(c); see also Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847.
In the instant action, the Defendant replied to the Plaintiff’s Complaint past the 30 days’
time limit, which reason entitles Plaintiff to a Summary judgment. Notably, Plaintiff served
Summons on the Defendant on Feb 2, 2022. The Defendant had 30 days to respond according to
the law. However, Defendant filed an answer on or about March 8, 2022. Defendant’s conduct
was a blatant violation of Rule 3.110(d), which provides that responsive pleadings must be filed
within thirty (30) days of the filing of a Complaint, or within a 15-day extension as stipulated by
the parties to the case.
In the Judge’s tentative ruling, the Judge only noted that Plaintiff had prematurely filed
the motion “only 8 days after Defendant Hoag answered.” However, the Judge did not notice that
the Defendant had filed their answer beyond the statutorily allowed time limit of thirty (30) days.
Contrary to the Judge’s statement, the Motion for Summary Judgment was filed eight days after
the Defendant’s untimely answer, and not eight days after initial services. The parties had not
stipulated that the Defendant could file the responsive pleading any time after the thirty days.
Besides, at the time Plaintiff filed the motion for summary judgment, Defendant Herbert
Conrad had also not filed any response to Plaintiff’s Complaint.
The foregoing shows that Plaintiff was already entitled to Summary Judgment even
before Defendant filed their late answer on March 8 th .

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MOTION FOR RECONSIDERATION

iii. There was evidence in support of Plaintiff’s Motion for Summary Judgment;
Plaintiff had also filed an Affidavit
According to Cal. Evid. Code § 452(h), the Court may take judicial notice of: “Facts and
propositions that are not reasonably subject to dispute and are capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy.”
Further, Cal. Evid. Code § 452 proceeds to provide that the Court shall take judicial
notice of any matter specidied in Cal. Evid. Code § 452, if a party makes such a request.
It was within the Court’s judicial notice, that the Defendant had not provided a timely
response to Plaintiff’s Complaint, and that they ended up filing their response past the thirty days
provided under of Rule 3.110(d). Besides, the second Defendant had not filed any response at the
time the Plaintiff filed the motion for summary judgment. This is enough evidence in support of
Plaintiff’s motion for summary judgment, since legally, both Defendants had filed no response to
Plaintiff’s Complaint within the required time.
Also, contrary to the Judge’s assertions, the Plaintiff had filed an Affidavit of Fee
Schedule, which Plaintiff duly filed in the Court.

iv. The Plaintiff is entitled to a Court Reporter assigned by the Court
An official court reporter, or other valid means to create an official verbatim record for
purposes of appeal, must generally be made available to in forma pauperis litigants upon request.
See Jameson v. Desta, 5 Cal.5th 594 (Cal. 2018). In Jameson v. Desta, the Supreme Court of
California held that as applied to in forma pauperis litigants who are entitled to a waiver of
official court reporter fees, the San Diego Superior Court’s general policy of not providing
official court reporters in most civil trials while permitting privately retained court reporters for
parties who can afford to pay for such reporters was invalid.
Further, according to California Rules of Court rule 2.956(b)(3), a party who has received
a fee waiver pursuant to California Rules of Court rule 3.55 may request an official court
reporter at least 10 calendar days prior to a trial or evidentiary hearing by submitting mandatory
court form L-0790.

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MOTION FOR RECONSIDERATION

In the instant action, Plaintiff cannot afford the price of a court reporter. For this reason,
on or about July 25, 2022, the Plaintiff requested for a Court Reporter by filing “Request for
Court Reporter by Party with Fee Waiver Filed”, for the Summary Judgment hearing scheduled
for August 1, 2022. The court had made previous fee waivers in the case such as on February 7,
2022, and January 25, 2022. Besides, the Plaintiff never waived her right to a court reporter.
At the day of the hearing, the clerk informed Plaintiff that there was no court reporter.
The clerk further told the Plaintiff that on Mondays, the Court usually does not have court
reporters. Plaintiff then asked for continuance until such a time when a court reporter would be
available. It is Plaintiff’s averment that the Judge should have only moved the hearing to a
different date other than Monday, to such a time when a court reporter would be available.
Besides, there would be no reasonable objection from the Defendant if the hearing would be
moved to a date when the court reporter would be available.
However, the Judge told Plaintiff that she would not get the court reporter for free. The
Judge further insinuated that Plaintiff would have to pay the Defendant’s attorney fees, and pay
the court reporter’s fees if she continued the case. The Judge then continued the hearing to
August 22, 2022, which is a Monday, when there are no court reporters in Court.
The Judge’s denial of Plaintiff’s request for a court reported violated Plaintiff’s due
process rights since Plaintiff the lack of a court reporter means that Plaintiff has no official
record for the evidentiary hearing, which record would have been used for appeal.

CONCLUSION

WHEREFORE, Plaintiff requests this Court grant the following Order(s):
1. THAT the Court reconsiders its Tentative Decision dismissing Plaintiff’s Motion
for Summary Judgment;
2. THAT this Court grant Plaintiff’s prayers in Plaintiff’s Motion for Summary
Judgment;
3. THAT this Court grant any other Order it deems just.

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MOTION FOR RECONSIDERATION

DATED:

Respectfully submitted,

____________________________
XXX

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MOTION FOR RECONSIDERATION

XXX

XXX

XXX

SUPERIOR COURT OF THE STATE OF XXX

COUNTY OF XXX

XXX,
Plaintiff,
v.
XXX  MEMORIAL HOSPITAL
PRESBYTERIAN; and XXX, in his official and individual
capacity,
Defendants.

Case No.: XXX

DECLARATION OF XXX  IN
SUPPORT OF MOTION FOR
RECONSIDERATION

Department: XXX

DECLARATION IN SUPPORT OF PLAINTIFF’S MOTION FOR

RECONSIDERATION

I, XXX, declare
1. I am the Plaintiff in this case;
2. I am entitled to Summary Judgment in consideration of the facts set forth in my Motion
for Reconsideration;
3. I am also entitled to Court Reporter appointed by this Court to provide an official record
for the evidentiary hearing, which record would be used for appeal;
4. Denying me this Motion for Reconsideration would be detrimental to me, and would
impede my access to justice.

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MOTION FOR RECONSIDERATION

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].

DATED:

____________________________

XXX

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