In the Matter of: Maria Luz Altieri-Ortiz

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/31/2025 Hearing on Motion for Reconsideration in Department 53

Tentative Ruling

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23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/31/2025 Hearing on Motion for Reconsideration in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING: Self-represented Petitioner Maria Luz Altieri-Ortiz’s motion for reconsideration is denied.

On December 5, 2024, this Court granted Respondent Robert G. Nielsen’s motion for summary adjudication as to the first cause of action in Petitioner’s “Petition to Invalidate Trust Based on Undue Influence; and for Damages for Elder Abuse.” The first cause of action sought to invalidate the Donna Marie Altieri Revocable 1997 Trust (“the Trust”) based on undue influence. The Court found that Respondent demonstrated that he was entitled to judgment as a matter of law on the first cause of action on the basis that it was barred by the statute of limitations in Probate Code § 16061.8 which requires an action to contest a trust be brought no later than 120 days after notification was served by the trustee.

Specifically, the Court found that Petitioner did not file a petition in Probate Court until August 10, 2023, more than 120 days after a notification of trustee was sent to Petitioner on March 30, 2023. The evidence showed that Respondent mailed the notification to various addresses, including 1640 Tiburon Boulevard, #12, in Tiburon, CA, where Petitioner resided for a period of more than five years prior to December 22, 2023.

Petitioner now seeks reconsideration of the Court’s December 5, 2024, order granting Respondent’s motion for summary adjudication. Petitioner contends that she was never sent notice. She contends that Respondent had information since 2011 that he was not supposed to contact her directly and that he was only to contact Russel Marne, whom she indicates was her attorney of record at the relevant time. Petitioner submits a declaration from Marne and Cynthia Siciliano. Marne declares that in 2021, he informed Respondent not to contact Petitioner. (Marne Decl. ¶ 2.)

He also declares that he informed Respondent and his counsel, that he would accept service of process or notification for Petitioner. (Id. ¶ 3.) Siciliano declares that she has accepted mail for Petitioner since 2007. (Siciliano Decl.) She also declares that she never received anything from Respondent’s counsel at 1640 Tiburon Blvd., #12 Tiburon, California. (Id.)

“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.” (CCP § 1008(a).)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/31/2025 Hearing on Motion for Reconsideration in Department 53

The Court notes at the outset that Petitioner states that the Court assumed that Petitioner did not oppose Respondent’s motion for summary adjudication. Petitioner makes this assertion based on the language in the December 5, 2024 order which states that “Respondent’s unopposed request for judicial notice is granted for the limited purposes permissible for judicial notice.” Petitioner is incorrect. The cited language simply recognized that Petitioner did not oppose Respondent’s request for judicial notice submitted in connection with his motion for summary adjudication. The Court’s ruling did not assume that Petitioner did not oppose the motion and instead recognized that Petitioner did oppose the motion.

The Court concludes that Petitioner has failed to demonstrate the existence of any new or different facts, circumstances, or law. To that end, Petitioner’s purported new facts are the Marne and Siciliano declarations described above. However, these declarations set forth information purportedly occurring or existing in 2021 and even earlier and thus, are facts that were clearly in existence prior to the December 4, 2024, hearing on, and prior to the due date for Petitioner’s opposition papers to, Respondent’s motion for summary adjudication.

“Courts have construed section 1008 to require a party filing an application for reconsideration or a renewed application to show diligence with a satisfactory explanation for not having presented the new or different information earlier.” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 [emphasis added]; New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) Where a moving party “easily could have obtained” the proffered “new” evidence previously, or had the “new” evidence in its possession since the outset of litigation, the evidence is not “new” for purposes of section 1008. (New York Times, 135 Cal.App.4th at 213-14.) “The burden under section 1008 is comparable 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, with reasonable diligence, have discovered or produced it at the trial.” (Id.; see also Foothills Townhome Assn. v.

Christiansen (1998) 65 Cal.App.4th 688, 692 disapproved on another ground in Navellier v. Sletten (2002) 29 Cal.4th 82 [plaintiff's belief that certain evidence was not necessary at hearing on summary judgment motion insufficient to justify reconsideration].)

Further, the burden is on the moving party is to provide “a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) The court in Garcia held that “section 1008’s reference to ‘new or different’ facts [does] not make the section’s prerequisites less restrictive. [Section 1008 requires a] threshold showing of diligence which has long required an ‘explanation’ of why the ‘newly

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/31/2025 Hearing on Motion for Reconsideration in Department 53

discovered’ matter was not presented earlier. Garcia would have us say this requirement is met by anything not previously ‘presented’ to the court. The miserable result would be to defeat the Legislature’s stated goal of reducing the number of reconsideration motions and would remove an important incentive for parties to efficiently marshal their evidence.” (Id. at 688-89.) The court further found that “[t]he information consisting of Garcia's own declared knowledge was obviously always within his possession, and no satisfactory explanation appeared for not bringing it out earlier,” such that it was not the sort of “new” evidence required by section 1008. (Id. at 690.)

Here, the purported new facts, specifically that Marne informed Respondent in 2021 that he was not to contact Petitioner, that Marne could accept service for Petitioner, and that Siciliano collected mail for Petitioner since 2007, were in existence prior to the December 4, 2024, hearing and most importantly, prior to Petitioner’s due date for its opposition to Respondent’s prior motion and thus, could have been presented to this Court. Petitioner presents no explanation as to why she did not present the declarations in connection with her opposition papers (which at best, appeared to take the form of two separate declarations only by Petitioner) to Respondent’s motion for summary adjudication.

In fact, these new declarations were filed in connection with the instant motion on December 13, 2024, approximately one week after the Court issued its ruling on Respondent’s motion for summary adjudication which only further supports the conclusion that the information not only existed, but was also easily obtainable. Further, as reflected in the December 5, 2024, ruling on submitted matter, Petitioner specifically argued to the Court during oral argument “that she was not served with any notification by the Trustee (i.e., Respondent in this action); that the addresses used by the Trustee for service upon her were “fake addresses;” that she doesn’t live at any of those addresses; that where she receives mail is not where she lives in any event; that the Trustee had been told not to contact her in any way other than through her attorney; and that she does not understand why the Trustee would have attempted to serve her directly.” (December 5, 2024 Order) Thus, the purported new facts presented by the new declarations appear to attempt to support arguments which Petitioner previously made and thus, should have been supplied at the time of opposing Respondent’s motion.

To the extent that Petitioner believed that the declarations were not needed to oppose Respondent’s motion for summary adjudication (or that it did not occur to Petitioner to supply them), that is not a basis for a motion for reconsideration. (Foothills Townhome Assn., supra, 65 Cal.App.4th at, 692 disapproved on another ground in Navellier v. Sletten (2002) 29 Cal.4th 82.)

The Court concludes that Petitioner failed to establish any “new or different facts, circumstances, or law” sufficient to support a motion for reconsideration much less a satisfactory explanation for failing to present any purported new fact earlier. 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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/31/2025 Hearing on Motion for Reconsideration in Department 53

Cal.App.4th 1494, 1500.)

The motion is denied.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.