Salemi v. First National Bank Texas

113 Salemi v. First MOTION FOR RECONSIDERATION – DENIED National Bank Texas, 2025-01536388 Plaintiff Brian Thomas Salemi (“Plaintiff”) moves for reconsideration of the Court’s order granting defendant First National Bank Texas dba First Convenience Bank’s (“Defendant”) Motion to Compel Arbitration.

Code of Civil Procedure section 1008(a) provides: “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.”

“According to the plain language of the statute, a court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon ‘new or different facts, circumstances, or law.’ ” (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.) “A party seeking reconsideration also must provide a satisfactory explanation for the failure to produce the evidence at an earlier time.” (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212.)

Plaintiff argues that new and different facts and circumstances show that Defendant failed to prove the existence of a valid agreement to arbitrate. Plaintiff contends that the driver’s license number on the Signature Card for the subject account is not his driver’s license number and Defendant has provided no evidence proving who presented the invalid identification. Plaintiff contends Defendant has not produced competent evidence proving that it was Plaintiff who used fraudulent identification and signed the Signature Card or knowingly assented to arbitration. Plaintiff contends that Defendant’s own fraud theory presents

foundation questions regarding who presented the invalid identification.

Defendant argues the facts offered by Plaintiff are not new within the meaning of section 1008. Rather, Plaintiff relies on the Signature Card but the Signature Card was submitted with Defendant’s original declaration and Plaintiff had a full and fair opportunity to review it before filing his opposition. Defendant argues that Plaintiff necessarily knew before the April 27, 2026 hearing whether he contended that he signed the Signature Card or assented to the agreement and he cannot now supply a declaration regarding those issues without a satisfactory explanation as to why the assertions were not made earlier. Defendant further argues that the Court already considered Plaintiff’s argument that no valid contract could exist if Plaintiff used fraudulent identification and rejected it.

In support of the Motion for Reconsideration, Plaintiff submits his own declaration in which he asserts he did not sign the Signature Card relied upon by Defendant or authorize anyone to sign it on his behalf. The Signature Card was attached to Defendant’s original Motion to Compel Arbitration and Plaintiff has provided no explanation as to why a declaration with the same assertion that he did not sign the Signature Card could not have been filed with his opposition to that prior motion. Thus, his declaration does not constitute “new or different facts” for purposes of section 1008. (Hennigan v.

White (2011) 199 Cal.App.4th 395, 405-406.) Similarly, Plaintiff provides no explanation as to why his arguments that the documents relied upon by Defendant were not properly authenticated or that Defendant did not adequately prove that Plaintiff personally signed the account-opening documents could not have been presented earlier. Again, to the extent Plaintiff disputes signing the Signature Card, he could have and should have provided evidence in support of his contention earlier.

Plaintiff’s argument that Defendant’s fraud theory is legally insufficient and does not establish the existence of an arbitration agreement was already raised by

Plaintiff and considered and rejected by the Court in its ruling on the Motion to Compel Arbitration. The Court previously held that fraud in the inducement will not render an arbitration agreement unenforceable if the fraud does not specifically go to the making of the agreement to arbitrate itself. Thus, the fact that Defendant is arguing that Plaintiff misrepresented information in connection with opening the account does not mean the agreement to arbitrate is unenforceable.

Plaintiff argues that Defendant improperly refused to provide substantive responses to his interrogatories before his time to oppose the Motion to Compel Arbitration. Again, this fact could have been raised in Plaintiff’s prior opposition. Plaintiff makes reference to the fact that Defendant’s supplemental responses identify the alleged agreement documents as the Deposit Agreement, Funds Availability Policy, and Signature Card but Plaintiff offers no explanation as to how this supplemental response warrants reconsideration of the Court’s order.

Plaintiff also states that Defendant claims in its supplemental responses that Plaintiff breached the Deposit Agreement by misrepresenting information when the account was opened. Again, Plaintiff offers no explanation as to how this response warrants reconsideration and, as discussed above, any fraud that occurred when the account was opened would not render the arbitration agreement unenforceable.

Moving party to give notice. 114 Selene Finance v. MOTION FOR LEAVE TO FILE AMENDED Kirton, 2024-01412902 COMPLAINT – CONTINUED DUE TO PENDENCY OF APPEAL

The hearing on Plaintiff Selene Finance, LP’s renewed motion for leave to file a First Amended Complaint is CONTINUED to OCTOBER 12, 2026, at 9:00 a.m. in Department N14. No further briefing will be permitted.

The Court finds that the proposed amendments to the Complaint are embraced by the pending appeal. A petition for review is pending before the California Supreme Court (S297655).