PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THIS COURT’S ORDER OF MAY 13, 2026, GRANTING NOFAR USA’S MOTION TO DISMISS
CIVIL LAW & MOTION CALENDAR – Hon. Cynthia P. Smith, Dept. A (Historic Courthouse) at 8:30 a.m.
Barend Venter et al v. Ofer Yannay et al 24CV000715
PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THIS COURT’S ORDER OF MAY 13, 2026, GRANTING NOFAR USA’S MOTION TO DISMISS
TENTATIVE RULING: The motion is DENIED.
The moving party fails to include, in the notice of this motion, the current version of the Tentative Ruling notice required by Local Rule 2.9, effective 1/1/26. The current version allows a party or counsel to request a hearing by calling the Court or emailing the Court, at JudicialReception2@napa.courts.ca.gov and providing specified information set out in Local Rule 2.9. The moving party is therefore directed to immediately provide, by telephone call AND email, the current Tentative Ruling notice explicitly required by Local Rule 2.9 to opposing party/ies forthwith.
The requirements for requesting oral argument under Local Rule 2.9 remain in effect. However, the Court may grant belated requests for oral argument or continuance of hearing, made by any party who represents it did not timely receive the required notice, regardless of whether or not moving party is present at the hearing.
Plaintiffs Venter Ventures LLC and Barend Venter move, pursuant to California Code of Civil Procedure section 1008, for reconsideration of the Court’s Order of May 13, 2026, granting Defendant Nofar USA LLC’s (Nofar USA) motion to dismiss the First Cause of Action of Plaintiffs’ Complaint (Motion to Dismiss).
“When an application for an order has been made to a judge, or to a court, and . . . granted . . . 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.” (Code Civ. Proc., § 1008, subd. (a) (Section 1008).) “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.” (Ibid.)
Counsel’s declaration in support of the instant motion states, in part, that “[w]e have never had the opportunity to discuss the conflict between the two conflicting forum selection provisions that are part of the [Membership Interest Subscription and Purchase Agreement].” (Declaration of Martin Glickfeld at ¶ 13 (Glickfeld Decl.).) That agreement is dated May 25, 2021, is alleged and relied upon in the original Complaint (see id. at ¶ 27), is the source of the forum-selection clause relied upon by Nofar USA in its moving papers filed June 10, 2024 (see id. at 4:14-5:5), and is quoted at length in Plaintiffs’ original opposition filed July 15, 2024 (see id. at 2:18-3:14.)
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Plaintiffs’ arguments based on the provisions of the Membership Interest Subscription and Purchase Agreement (MIPA), therefore, are not based on new or different facts.
Plaintiffs appear to argue, here, that reconsideration (on these grounds) is appropriate because, through their Opposition to the Motion to Dismiss, they made a tactical decision to advance only one of several germane arguments and, as that one argument has now been rejected, they would like the opportunity to advance the others. (See Support Memorandum at 3:9-13 [“In opposition . . . we asserted that the forum selection provision was unenforceable because of the jury waiver. . . . Given what appeared to be a clearly unenforceable agreement, no other argument was necessary, including but not limited to addressing whether a mandatory provision may still be rejected based on other factors.”], and 7:1-4 [“given the circumstances and state of the law at the time, there was no reason to argue anything but the unenforceability of the MIPA provision. . . .
Circumstances changed when the court reached a different result at the hearing, contrary to its tentative ruling.”]; see also Declaration of Martin Glickfeld at ¶ 3 [“The necessity to discuss enforceability of mandatory provision [sic] based on other factors did not arise until the hearing where the court granted the motion based on extraneous factors unrelated to the provision itself”].)
Plaintiffs fail, however, to provide authority suggesting that arguments, not based on new or different facts, which could have been, but for tactical reasons were not, raised in an opposition, are a proper basis for reconsideration pursuant to Section 1008. Rather, the law is clear. “A motion for reconsideration must be based on new or different facts, circumstances, or law. [Citation.] ‘To merit reconsideration, a party must give a satisfactory reason why it was unable to present its ‘new’ evidence at the original hearing.’ [Citation.]” (McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265 (McPherson).)
By acknowledging that they elected to not advance the subject arguments because of their belief that there was “no necessity” to do so, Plaintiffs concede that they had the ability to present them through their original Opposition to the Motion to Dismiss. As such, they fail to give a satisfactory reason why they were unable to present these arguments through their opposition and at the original hearing. (See McPherson, supra, 78 Cal.App.4th at 1265.)
Plaintiffs further argue that Nofar USA has waived and/or repudiated the forum selection clause by “responding to the Second Cause of Action, [and] when Nofar USA, the true plaintiff, filed an additional case against Mr. Venter, it repudiated the MIPA provision.” (Support Memo at 9:14, et seq.) The argument is vague and ambiguous to an extent that Plaintiffs fails to persuade the Court that it constitutes grounds for reconsideration.
For the foregoing reasons, the Court is without jurisdiction to reconsider its Order of May 13, 2026. (See Code Civ. Proc., § 1008, subd. (e).)
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