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N Cal Attorney
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Experience:  since 1983
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Motion for reconsideration - California - Can I file one? I

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Motion for reconsideration - California - Can I file one?

I am a pro per litigant suing and the judge has just sustained the defendant's demurrer without leave to amend. California Code of Civil Procedure §1008 provides that a motion for reconsideration may be filed but it must be "based upon new or different facts, circumstances, or law." (CCP §1008) A violation of the section is punishable by contempt and sanctions. I am wondering if the situation that I will describe below is one that is OK for a motion for reconsideration.

This was the third demurrer. Case was filed 9/20/2012. Defendant is a public employee. The tort occurred within the scope of public employment. The tort occurred when I was 11 years old. I discovered the tort when I was 20 or 21 years old. Statute of limitations runs until plaintiff is 26 years old. Case was filed when I was 25 years old. A tort claim must have been filed with the employing public entity within 6 months of "the accrual of the cause of action." I never filed a tort claim. I was arguing that under §950.4 of the GC my failure to file a tort claim was excused because I did not have "know or have reason to know" my injury was caused within the scope of public employment during claims presentation period. Defendant argued that §950.4 did not excuse my failure to file a tort claim because facts alleged in complaint showed plaintiff had "reason to know" that tort was caused by public employee during claims presentation period.

Nobody could agree when cause of action accrued. I argued for the date all the elements the cause of action were complete. Defense argued against my proposed accrual date, but did not argue for any specific accrual date. Judge seemed to be of the opinion that accrual for this type of tort was defined by statute as the day I turned 18. Judge did not let on to this opinion until tentative ruling. At demurrer hearing, I began to argue about accrual dates. Judge couldn't figure out from my complaint whether or not I knew of tort when I was 18, but based on the tentative ruling he seemed to suspect that I did know of the tort when I was 18. Judge stopped my arguments and began asking me many questions. One of these questions was "You knew, right?", or something similar. I answered in the affirmative because I have known of the tort for many years, and explained to the judge that I learned of the tort when I had searched through court records. Judge sustained demurrer without leave to amend.

In retrospect, when the judge asked "You knew, right?", I believe that he was asking whether or not I knew of the tort when I turned 18. I did not learn of the tort until I was 20 or 21. I did not understand that the judge was asking this when I answered the question. I believe that the judge would have made a different ruling had I understood the question.
A declaration stating when and how you discovered the tort would appear to be new facts that were not previously pled, so it does sound like you have a basis for a § 1008 motion, at least to change the ruling to give you leave to amend.

I hope this information is helpful.
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