Zhang v. Safeco Insurance Company of America et al

Filing 42

ORDER by Judge Claudia Wilken DENYING 40 MOTION FOR RECONSIDERAION AND 41 MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION. (ndr, COURT STAFF) (Filed on 11/14/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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YANTING ZHANG,

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Plaintiff,

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No. C 12-1430 CW

v.
SAFECO INS. CO. OF AMERICA, INC.
and LEONARD BAINES,
Defendants.
________________________________/

ORDER DENYING
MOTION FOR
RECONSIDERAION AND
MOTION FOR LEAVE
TO FILE MOTION FOR
RECONSIDERATION
(Docket Nos. 40,
41)

United States District Court
For the Northern District of California

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Plaintiff Yanting Zhang moves for reconsideration of the

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Court’s May 2013 order granting summary judgment to Defendant
Safeco Insurance Company of America, Inc.

Civil Local Rule 7-9 for leave to file the motion for
reconsideration.
motion.

Defendant has not filed an opposition to either

After considering Plaintiff’s submissions, the Court

denies both motions.
BACKGROUND

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Plaintiff brought this action against Safeco in February

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She also moves under

2012.

In her complaint, she alleged that the company had breached

its contract to provide insurance coverage for a property that she
owned in Richmond, California.

Specifically, Plaintiff alleged

that Safeco failed to compensate her adequately for damage caused
to the property by a series of vandalism incidents between June
2009 and January 2010.
In May 2013, this Court granted Safeco’s motion for summary
judgment.

Docket No. 37, Order Granting Defendant’s Motion for

Summary Judgment, at 12.

The Court found that Plaintiff had not

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presented any evidence to dispute Safeco’s estimate of the

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property damage and failed to produce a timely damage estimate of

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her own.1

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failed to present any evidence that she continued to possess an

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insurable interest in the property after the first vandalism

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occurred in June 2009; in fact, Plaintiff openly admitted that she

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sold the property the week that the first vandalism occurred,

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thereby terminating Safeco’s contractual obligations to provide

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coverage for any of the damage resulting from subsequent incidents

Id. at 8-11.

The Court also found that Plaintiff

United States District Court
For the Northern District of California

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of vandalism.

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granted summary judgment to Safeco on all claims.

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Judgment was entered on May 1, 2013.

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Id.

Based on these undisputed facts, the Court
Id. at 12.

Four weeks later, on May 29, Plaintiff filed a motion for

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reconsideration of the summary judgment order.

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her motion, she asserted that she had recently obtained a damage

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estimate from a licensed contractor whom she had hired to inspect

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the property in July 2009, a month after the initial vandalism.

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She argues that this “newly-discovered evidence warrants

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reconsideration of the ruling.”

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Docket No. 40.

In

Id. at 3.

On July 3, 2013, five weeks after filing the motion for

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reconsideration, Plaintiff moved for leave to file a motion for

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reconsideration.

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grounds for seeking reconsideration as her prior motion,

Docket No. 41.

The motion reiterated the same

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Although Plaintiff submitted a damage estimate dated August 12,
2010, this estimate was based on an inspection that took place more than
a year after Safeco produced its initial damage estimate. During the
interim period, Plaintiff sold the property and the property was
vandalized several more times. Accordingly, the August 2010 estimate
was not sufficient to raise a dispute of material fact.

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highlighting the recently obtained damage assessment from July

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2009.

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DISCUSSION
I.

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Motion for Leave to File a Motion for Reconsideration
Plaintiff seeks leave to file a motion for reconsideration

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under Civil Local Rule 7-9.

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reconsideration only after obtaining leave of the court to do so.

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Civil L.R. 7-9(a).

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request may be made only if the court has not yet entered a final

That rule permits a party to move for

However, the rule also makes clear that such a

United States District Court
For the Northern District of California

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judgment.

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of the claims and the rights and liabilities of all the parties in

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a case, any party may make a motion before a Judge requesting that

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the Judge grant the party leave to file a motion for

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reconsideration of any interlocutory order made by that Judge.”

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(emphasis added)).

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Id. (“Before the entry of a judgment adjudicating all

As noted above, Plaintiff sought leave to file a motion for

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reconsideration in July 2013, more than two months after the Court

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entered its final judgment in this case.

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request for leave to file a motion for reconsideration must be

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denied.

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II.

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Accordingly, Plaintiff’s

Motion for Reconsideration
Because Plaintiff failed to obtain leave of the Court to file

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a motion for reconsideration under Civil Local Rule 7-9, she may

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not seek reconsideration under that rule.

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reconsideration under Federal Rules of Civil Procedure 59(e) and

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60(b), both of which allow a party to seek relief from a final

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order or judgment.

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these rules in her motion, the Court nevertheless construes her

She may, however, seek

Although Plaintiff fails to cite either of

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request for reconsideration as arising under these rules.

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Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991)

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(“Although the [plaintiffs] never indicated which Federal Rule of

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Civil Procedure governed their motion, a motion for

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reconsideration of summary judgment is appropriately brought under

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either Rule 59(e) or Rule 60(b).”).

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See

Under Rule 59(e), a party may move “to alter or amend a

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judgment” within twenty-eight days of the entry of judgment.2

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Fed. R. Civ. P. 59(e).

“A Rule 59(e) motion is appropriate ‘if

United States District Court
For the Northern District of California

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the district court: (1) is presented with newly discovered

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evidence, (2) committed clear error or the initial decision was

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manifestly unjust, or (3) if there is an intervening change in

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controlling law.’”

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1060, 1064 n.1 (9th Cir. 2005) (citing Sch. Dist. No. 1J,

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Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir.

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1993)).

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reconsideration of a “final judgment, order, or proceeding” when

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one of the following is shown: “(1) mistake, inadvertence,

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surprise or excusable neglect; (2) newly discovered evidence that,

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with reasonable diligence, could not have been discovered in time

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to move for a new trial under Rule 59(b); (3) fraud (whether

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previously called intrinsic or extrinsic), misrepresentation, or

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misconduct by an opposing party; (4) the judgment is void; (5) the

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judgment has been satisfied, released or discharged . . .; or

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(6) any other reason justifying relief.”

Circuit City Stores, Inc. v. Mantor, 417 F.3d

Rule 60(b) similarly allows a party to seek

Fed. R. Civ. P. 60(b).

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Plaintiff satisfied the twenty-eight day requirement here.

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Here, Plaintiff seeks reconsideration solely on the basis of

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“newly discovered evidence” -- specifically, the recently obtained

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July 2009 damage estimate which, she contends, contradicts

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Safeco’s damage estimate.

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recognize “newly discovered evidence” as a basis for seeking

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reconsideration, the same standard applies under either rule.

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11 Wright, Miller & Kane, Fed. Prac. & Proc. § 2808 (3d ed. 2013)

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(“The same standard applies for establishing this ground for

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relief, whether the motion is under Rule 59 or 60(b)(2).”).

Although Rule 59(e) and Rule 60(b) each

See

Under

United States District Court
For the Northern District of California

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that standard, the party seeking reconsideration must show that he

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or she “exercised ‘due diligence’ to discover [the newly

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discovered] evidence” and that the evidence is “of such magnitude

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that production of it earlier would have been likely to change the

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disposition of the case.”

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Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987).

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not met either of these requirements in this case.

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Coastal Transfer Co. v. Toyota Motor
Plaintiff has

First, Plaintiff has not established that she exercised “due

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diligence” in trying to obtain the July 2009 damage estimate

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before filing her summary judgment brief.

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that the contractor she hired to produce the damage estimate

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relocated to a different part of the state without sending her a

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copy of the estimate, Zhang Decl. ¶¶ 4-7, she does not explain why

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she was unable to locate him until this year, nearly four years

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after she hired him and more than a year after she initiated this

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action.

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contractor -- namely, entering his name into Google and finding

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his business’s website, id. ¶ 9 -- suggests that she could have

Although she asserts

Further, the means by which she ultimately found the

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found him much sooner with minimal effort.3

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failure to obtain the damage estimate until after the entry of

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judgment reveals a lack of reasonable diligence and precludes

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reconsideration under Rules 59(e) and 60(b).

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833 F.2d at 212 (“Evidence is not ‘newly discovered’ under the

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Federal Rules if it was in the moving party’s possession at the

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time of trial or could have been discovered with reasonable

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diligence.”).

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Thus, Plaintiff’s

Coastal Transfer,

Second, even if Plaintiff had exercised reasonable diligence

United States District Court
For the Northern District of California

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in trying to obtain the 2009 damage estimate, it would not have

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changed the outcome of this case.

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that she never provided Safeco with a copy of her contractor’s

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damage estimate in 2009, as she was obliged to do if she wanted to

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dispute Safeco’s original estimate.

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(“[Plaintiff] also admitted that she never formally disputed

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Safeco’s repair estimate by submitting a conflicting estimate from

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a licensed contractor, despite Safeco’s invitation to do so.”

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(citing Plaintiff’s deposition)).

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Plaintiff has already admitted

See Docket No. 37, at 9

Her recent assertion that she

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The Court notes that Plaintiff’s account of her efforts to obtain
the 2009 damage estimate contains various inconsistencies. For
instance, Plaintiff never explains why she stopped trying to obtain the
damage estimate from the contractor in 2009 after she hired him
specifically to produce the estimate. Nor does she explain why she
declined to hire another contractor to repair the property after she
lost contact with the first contractor. Nor does she explain why she
failed to mention the July 2009 damage estimate to Safeco until after
she commenced this litigation. Nor does she explain why she told Safeco
in December 2009 that it would cost $60,000 to repair the damage from
the first two vandalisms if she had a July 2009 estimate stating that it
would cost $119,000 to repair the damage from the first vandalism alone.
See Docket No. 26-2, Ives Decl. ¶ 8, Ex. 5. Nor does she explain how
she was able to remember the contractor’s name this year when she
previously testified at her deposition that she “couldn’t recall his
name” and “couldn’t recognize his name now.” Zhang Decl., Ex. 1, Zhang
Depo. 55:1-:10. Nevertheless, despite these inconsistencies, the Court
accepts her assertions as true for the purposes of this motion.

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did not receive a copy of the estimate until this year merely

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confirms that she failed to provide the estimate to Safeco

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immediately after the vandalism.

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What’s more, the damage estimate Plaintiff now seeks to

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submit is dated July 23, 2009 -- two weeks after she called Safeco

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to contest its damage estimate.

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explained in the summary judgment order, Plaintiff called Safeco

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on July 10, 2009 and “complained that her contractors thought

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[Safeco]’s estimate was too low.”

Calderon Decl., Ex. 1, at 2.

Docket No. 37, at 2-3.

As

This is

United States District Court
For the Northern District of California

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the only communication between Safeco and Plaintiff in the record

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where Plaintiff ever mentioned hiring her own contractors to

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assess the damage from the first vandalism.

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call occurred before the contractor had produced his damage

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estimate -- and, it appears, before he had even inspected

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Plaintiff’s property4 -- Plaintiff could not have been referring

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to this estimate during the call.

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Thus, because this

In sum, there is no evidence in the record to suggest that

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Plaintiff discussed the July 2009 damage estimate with Safeco, let

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alone provided Safeco with a copy of the estimate, prior to her

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filing this lawsuit.

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estimate earlier, it would not have been enough to support an

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inference that Safeco ignored contrary evidence in producing its

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damage estimate or otherwise breached its policy.

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this “newly discovered evidence” does not provide grounds for

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reconsideration of the Court’s May 2013 summary judgment order.

Thus, even if Plaintiff had submitted the

Accordingly,

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The July 2009 estimate identifies July 15, 2009 as the date when
the contractor entered the property. Calderon Decl., Ex. 1, at 2.

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CONCLUSION
For the reasons set forth above, Plaintiff’s motion for

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reconsideration (Docket No. 40) and motion for leave to file a

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motion for reconsideration (Docket No. 41) are DENIED.

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IT IS SO ORDERED.

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Dated: 11/14/2013

CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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