KYNA LIM VS. CITY OF MENLO PARK

August 24, 2026 LAW AND MOTION CALENDAR PAGE 5 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________

02:00 PM 24-CIV-03420 KYNA LIM VS. CITY OF MENLO PARK LINE 2

KYNA LIM PRO PER CITY OF MENLO PARK NICHOLAS SYREN

PLAINTIFF: KYNA LIM’S MOTION FOR RECONSIDERATION OF THE JULY 20, 2026 ORDER SUSTAINING DEFENDANT'S DEMURRER TO THE SECOND AMENDED COMPLAINT WITHOUT LEAVE TO AMEND, LIMITED TO THE COURT'S DETERMINATION DENYING LEAVE TO AMEND (CCP 1008(A)), OR, IN THE ALTERNATIVE, SUGGESTION THAT THE COURT RECONSIDER ON ITS OWN MOTION

TENTATIVE RULING:

The Court again notes that Plaintiff’s proofs of service of the moving and reply papers include her declaration that she served the papers herself, which violates Code of Civil Procedure section 1013a, subdivision (1). Defendant does not object and has responded, so there is no prejudice, and the Court finds the defect to have been waived. Plaintiff is admonished not to sign proofs of service herself. Plaintiff Kyna Lim’s Motion for Reconsideration, Etc. (the “Motion”) is DENIED.

Background

Per the allegations of the Second Amended Complaint (“SAC”), Defendant failed to maintain its tree (the “Tree”) that was adjacent to her property (the “Property”), damaging her water and sewer lines and her foundation, resulting in economic and health-related damages. Plaintiff repeatedly reported the issues with the Tree to another city years earlier (in 2015), believing it to be the responsible party. Plaintiff was redirected to Defendant in October 2023.

The Court sustained Defendant’s demurrer to the SAC (the “Demurrer”), without leave to amend. (Minute Order, July 20, 2026 (the “Order”).) Concerning leave to amend, the aspect of the order to which the Motion is directed, the Court held that:

While opposing the demurrer and repeatedly asking for leave to amend, Plaintiff has failed to identify any facts that Plaintiff contends Plaintiff could allege and that would cure the legal defects in the Second Amendment Complaint. This lawsuit is more than two years old and based on the facts Plaintiff has already alleged it seems highly unlikely that she will be able to plead around the very untimely nature of the lawsuit. Accordingly, leave to amend is tentatively DENIED as futile.

However, if Plaintiff believes it is possible to address the deficiencies identified in this tentative, Plaintiff must contest the tentative and appear to explain in reasonable detail what facts Plaintiff can allege to cure. If Plaintiff does, the Court will consider those facts and reconsider granting leave. (Order, p.6.)

Plaintiff did appear on July 20, 2026 and identified those facts that she contended she could add/delete to a Third Amended Complaint. But having considered those facts, the Court concluded that they would not cure the deficiencies.

Accordingly, Plaintiff brings the Motion seeking reconsideration of the Court’s denial of leave to amend so that she may file a Third Amended Complaint (“TAC”). In the alternative to granting the Motion,

August 24, 2026 LAW AND MOTION CALENDAR PAGE 6 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Plaintiff asks the Court to reconsider its denial of leave to amend sua sponte, pursuant to its inherent authority.

Section 1008 is the sole statute providing for a motion for reconsideration. (Code Civ. Proc., § 1008, subd. (e) (“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.”).) Such a motion arises under subdivision (a), which requires that the movant “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.” (Code Civ. Proc., § 1008, subd. (a).)

The Court considering a motion for reconsideration rules in two steps: first, whether the motion meets the requirements of new or different facts, circumstances or law, and second, a re-evaluation of the merits of the original order. (Randy’s Trucking, Inc. v. Sup. Ct. (Buttram) (2023) 91 Cal.App.5th 818, 844.) The purpose of section 1008 is to conserve the trial Court’s resources by constraining litigants who would attempt to repeatedly bring the same motion or raise arguments and evidence already considered by the Court. (Schacter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 736.)

In order to merit reconsideration, the moving party must show some fact or circumstance not previously before the Court for consideration, and a valid reason for not offering it earlier. (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1198 (Baldwin).) The burden under section 1008 is therefore akin 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 have discovered or produced it earlier with reasonable diligence. (New York Times Co. v.

Sup. Ct. (Wall St. Network, Ltd.) (2005) 135 Cal.App.4th 206, 212-213.) A party seeking reconsideration of a prior order based on new or different facts, circumstances, or law must provide a satisfactory explanation for failing to present the information at the first hearing. (Calif. Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 47.) A motion for reconsideration is properly denied where it is based on evidence that could have been presented in connection with the original motion. (Hennigan v.

White (2011) 199 Cal.App.4th 395, 405-06.)

Plaintiff asserts that she offers “one new fact” (MPA ISO Motion, 1:16)) that she could not have presented earlier, consisting of a written contractor’s estimate dated July 23, 2026, for the complete removal of the Tree’s remaining root mass and affected soil over the course of two to three work days for $5,500. She argues that this evidence shows that the TAC could plead a continuing, abatable trespass, rather than the permanent trespass which the Court found, and which was the ground for the Court’s further finding that leave to amend would be futile.

As discussed above, the new fact must be such that the moving party could not have discovered or produced it earlier with reasonable diligence. (NYT, 135 Cal.App.4th at 212-213.) Plaintiff demonstrates that she was able to obtain a professional estimate of the root remediation cost in three days. The Motion is properly denied where it is based on evidence that could have been presented in connection with the SAC, or even Plaintiff’s Opposition to the Demurrer.

Regardless, the Motion asserts that the repair estimate means that the TAC could plead a continuing, abatable trespass, but by the label of its third cause of action, the SAC already had attempted to plead continuing trespass, and the Court found that it had failed to do so. Thus, the Motion simply “belatedly conjure[s] a legal theory different from that previously rejected,” which does not avail Plaintiff of the ability to obtain reconsideration. (Baldwin v. Home Sav. of America (1997) 59 Cal.App.4th 1192, 1199.)

August 24, 2026 LAW AND MOTION CALENDAR PAGE 7 Judge: HONORABLE DAVID A. SILBERMAN, DEPARTMENT 11 ________________________________________________________________________ Defendant also correctly argues that Plaintiff now seeks to retract the diminution-in-value and stigma allegations of the SAC, which proposed deletions are improper under the sham pleading doctrine: A plaintiff may not amend complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrer or motions for summary judgment. (Larson v.

UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343-344.) “A plaintiff may not avoid a demurrer by pleading facts or positions in an amended complaint that contradict the facts pleaded in the original complaint or by suppressing facts which prove the pleaded facts false.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877.)

In a nutshell, Plaintiff knew for years that tree roots were intruding onto her property and damaging it. She alleged that it permanently damaged her property by decreasing its value. And regardless of why, she did not pursue this lawsuit against defendant for years. That she could have someone come onto her property and remove the roots is not new or disputed (in fact she has already alleged that she previously did in paragraph 26 of her Second Amended Complaint). Her claims are time-barred.

Finally, the court understands “that sections 437c and 1008 limit the parties’ ability to file repetitive motions but do not limit the court’s ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le François v. Goel (2005) 35 Cal.4th 1094, 1107.) After having expressly invited Plaintiff to “contest the tentative and appear to explain in reasonable detail what facts Plaintiff can allege to cure” (Order, p.6), the Court heard Plaintiff’s arguments and nonetheless adopted its Tentative Ruling. The Court finds no basis upon which to conclude that it has erred.

Any party who contests a tentative ruling must email Dept11@sanmateocourt.org with a copy to all other parties by 4:00 p.m. stating, without argument, the portion(s) of the tentative ruling that the party contests.

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, counsel for the prevailing party shall prepare for the Court’s signature a written order consistent with the Court’s ruling pursuant to California Rules of Court, rule 3.1312 and provide written notice of the ruling to all parties who have appeared in the action, as required by law and by the California Rules of Court. Please note that Local Rule 3.403(b)(iv) states in part “prevailing party on a tentative ruling is required to prepare a proposed order REPEATING VERBATIM the tentative ruling” (emphasis added). The order should be efiled only, do not email or mail a hard copy to the Court.