Hernandez v. Levatino CA5

Filed 7/18/13 Hernandez v. Levatino CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DAVID S. HERNANDEZ,
F064938
Plaintiff and Appellant,
(Super. Ct. No. 670673)
v.

CHARLES R. LEVATINO, OPINION
Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Stanislaus County. Timothy W.
Salter, Judge.
David S. Hernandez, in pro. per., for Plaintiff and Appellant.
McCormick, Barstow, Sheppard, Wayte & Carruth LLP, Marshall C. Whitney and
Scott M. Reddie for Defendant and Respondent.
-ooOoo-
 David S. Hernandez’s (hereafter Hernandez) divorce from Sherri L. Hernandez
(hereafter Wife) was final in 2004. Since that time Hernandez has filed numerous actions
challenging the distribution of the marital assets.
In this action, Hernandez sued Charles R. Levatino, who represented Wife in the
divorce. Hernandez’s complaint and opening brief are very difficult to understand. It
appears Hernandez alleges the trial court appointed Levatino a trustee for Hernandez and,
as a result, Levatino owed Hernandez a fiduciary duty. Levatino allegedly breached this
fiduciary duty when the marital assets were sold and/or divided.
Levatino filed a special motion to strike the complaint pursuant to Code of Civil
Procedure section 425.16, subdivision (b)(1),1 alleging that Hernandez’s complaint was a
strategic lawsuit against public participation (hereafter SLAPP). The trial court
concluded that the causes of action in Hernandez’s complaint arose from statements and
actions occurring in a judicial proceeding (id., subd. (e)(1)), and there was no possibility
Hernandez would prevail on the merits of the claim (id., subd. (b)(1)). Accordingly, it
granted Levatino’s motion, struck Hernandez’s complaint, entered judgment in favor of
Levatino, and awarded Levatino attorney fees.
We have thoroughly reviewed the record and conclude the trial court reached the
correct conclusion. All of the actions complained of by Hernandez arose out of
Levatino’s representation of Wife, and there is no possible merit to the claims asserted by
Hernandez. Thus, we affirm the judgment.

1All further statutory references are to the Code of Civil Procedure unless
otherwise stated.

2.
 FACTUAL AND PROCEDURAL SUMMARY
On November 16, 2011, Hernandez filed a complaint titled “Complaint Breach of
Fiduciary Responsibily [sic] in Tort.” As we understand the complaint, it alleged
Levatino, the only defendant, was entrusted by the trial court with dividing the proceeds
from the sale of community assets, thereby creating an attorney-client relationship
between Hernandez and Levatino. The complaint described the relationship as
“confidential” and asserted Levatino became Hernandez’s fiduciary. According to the
complaint, Levatino breached his fiduciary obligations when he made misrepresentations,
failed to account for assets, failed to provide all sale documents related to community
assets, and failed to provide an accounting for the sale of the community assets.
Hernandez alleged he was unaware of Levatino’s “dishonest motive” until November 10,
2010. Hernandez claimed he justifiably relied on Levatino because it was in the best
interest of Levatino’s client (Wife) to maximize the sale of the community assets.
The complaint also asserted Levatino falsely represented to the trial court on April
23, 2008, that a 2000 Ford Windstar van was sold during the marriage and Hernandez
received a credit of $3,800 as his half of the sale proceeds. The complaint alleged the
vehicle was not sold during the marriage. As a result of this misrepresentation, the
complaint alleged Hernandez was deprived of his portion of the asset and caused him to
lose motions he filed in 2008 and 2011 to correct this issue.
In addition, the complaint alleged Hernandez was damaged in an amount in excess
of $300,000 when the community residence and another vehicle were sold. He claimed
the residence was sold as a three-bedroom home when it was a five-bedroom home.
In September 2009, Hernandez filed a claim with Stanislaus County (hereafter
County), apparently seeking recovery for Levatino’s alleged misconduct. We presume
Hernandez asserted Levatino was acting as an employee of the court at the time he acted,
but Hernandez’s reasoning is unclear. Another document filed with the trial court

3.
asserted that in December 2010 Hernandez learned that the van had not been sold and
alleged Levatino made misrepresentations to the trial court about the van.
Levatino challenged the complaint in several respects. As pertinent, he filed a
motion pursuant to section 425.16, asserting the trial court should strike the complaint
because the actions alleged by Hernandez were privileged since Levatino was acting at
all relevant times as Wife’s attorney. Included in the motion was a declaration filed by
Levatino that explained he was hired by Wife in 2003 to represent her in the proceedings
to dissolve her marriage to Hernandez. Levatino never represented Hernandez “in any
way” or “at any time.” Hernandez and Wife stipulated to the sale of the family residence
in 2003. A lien for unpaid child support was paid to County from the sale proceeds, and
Hernandez received credit for that lien in the final settlement.
Levatino again represented Wife in 2008 when Hernandez filed a “Motion for
Failure in the Division of Marital Assets” and a “Motion for Deliberate
Misappropriation.” On April 24, 2008, the trial court denied Hernandez’s motions,
concluding the marital assets had been divided pursuant to the stipulation. Hernandez
then filed a claim with County alleging Levatino had misappropriated marital assets.
Hernandez next filed a “Petition to Enforce Marital Property in the Hernandez
Dissolution.” This motion asked the trial court to reconsider its April 24, 2008, order.
The trial court denied this motion on July 13, 2010. This court denied Hernandez’s
appeal from that order. (Hernandez v. Hernandez (June 16, 2011, F060828) [nonpub.
opn.].)
On August 9, 2011, Hernandez filed a “Motion Regarding Misrepresentation and
Fraud.” This motion was denied on September 13, 2011.
During this entire time, Levatino asserted he represented Wife only, and all
representations he made to the trial court were accurate statements of the facts known to
him and were made in the course of representing Wife.

4.
 Hernandez opposed the motion to strike. We interpret his opposition as asserting
Levatino was a court-appointed trustee over Hernandez and Wife’s community assets,
and therefore Levatino owed a fiduciary duty to Hernandez. Levatino breached this
fiduciary duty, according to Hernandez, by (1) concealing assets from Hernandez,
(2) failing to divide the community assets properly, (3) failing to provide an accounting,
and (4) failing to disclose the location of hidden assets. The sole basis for the claims
revolved around the sale of the van and the sale of the residence.
The trial court granted the motion to strike, concluding Levatino had met his
burden of establishing he was entitled to the protection found in section 425.16,
subdivision (b), and that Hernandez had failed to establish there was a probability he
would prevail on the merits. This order was issued on March 8, 2012.
On March 22, 2012, Hernandez filed a motion for reconsideration of the order
granting the motion to strike, which was denied. This appeal followed.
DISCUSSION
The notice of appeal appears to indicate Hernandez is appealing from the
judgment entered after the trial court granted Levatino’s special motion to strike. He also
appears to appeal from the order denying his motion requesting judicial notice.2
Since Hernandez’s brief is very difficult to understand, we will do our best to
determine the reasons Hernandez feels the trial court erred. We begin with section
425.16, the anti-SLAPP statute.

2The notice of appeal also states Hernandez is appealing from the order denying
him a “Right to Attach.” We have reviewed Hernandez’s brief and find no reference to a
“Right to Attach.” Accordingly, if this were an issue, Hernandez has forfeited it because
of his failure to provide any argument or cite any authority. (In re S.C. (2006) 138
Cal.App.4th 396, 408.) We also did not locate any documents in the record that would
suggest an attachment was sought in this case.

5.
I. Anti-SLAPP Motion
The statute
Section 425.16, subdivision (b)(1) states that a cause of action that arises from any
act by the defendant that is in furtherance of the defendant’s “‘right of petition or free
speech under the United States Constitution or the California Constitution in connection
with a public issue’” is subject to a special motion to strike unless the plaintiff can
establish there is a “probability that the plaintiff will prevail on the claim.”
The phrase “right of petition or free speech under the United States Constitution or
the California Constitution [performed] in connection with a public issue” is defined in
section 425.16, subdivision (e). As pertinent here, the definition of the phrase includes
“any written or oral statement or writing made before a … judicial proceeding.”
(§ 425.16, subd. (e)(1).)
The anti-SLAPP statute is designed to deter and quickly dispose of frivolous
litigation. (Flatley v. Mauro (2006) 39 Cal.4th 299, 311-312 (Flatley).) The statute
allows the trial court to evaluate the lawsuit at an early stage in a manner similar to
summary judgment. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180,
192.) The granting of an anti-SLAPP motion results in dismissal of the claims on the
merits and entitles the defendant to recover costs and attorney fees. (Ibid; § 425.16,
subd. (c)(1).)
In ruling on a special motion to strike, the trial court follows a two-step analysis.
(Smith v. Adventist Health System/West (2010) 190 Cal.App.4th 40, 50.) The moving
defendant carries the initial burden to show the challenged cause of action arises from
protected free speech or petitioning activity. (Coretronic Corp. v. Cozen O’Connor
(2011) 192 Cal.App.4th 1381, 1387.) The burden is satisfied by demonstrating that the
conduct underlying the plaintiff’s claim fits into a category of protected activity set forth

6.
in section 425.16, subdivision (e).3 (Navellier v. Sletten (2002) 29 Cal.4th 82, 88
(Navellier).)
If the trial court finds the defendant’s threshold showing has been made, the
burden shifts to the plaintiff to produce evidence establishing a probability that he or she
will prevail at trial on the cause of action. (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.) To meet this burden, the plaintiff must plead and substantiate
a legally cognizable claim for relief. (Oasis West Realty, LLC v. Goldman (2011) 51
Cal.4th 811, 820.) “‘Put another way, the plaintiff “must demonstrate that the complaint
is both legally sufficient and supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”’
[Citation.]” (Ibid.) The evidence favorable to the plaintiff is accepted as true in this
analysis, while the defendant’s evidence is evaluated to determine if it defeats the
plaintiff’s claim as a matter of law. (Flatley, supra, 39 Cal.4th at pp. 323, 326.) The
motion will not be granted unless both prongs of the statute are established. (Navellier,
supra, 29 Cal.4th at p. 89.)
We review an order granting or denying a special motion to strike de novo,
engaging in the same two-step process as the trial court to determine if the parties have
satisfied their respective burdens. (Flatley, supra, 39 Cal.4th at p. 325; Tuszynska v.
Cunningham (2011) 199 Cal.App.4th 257, 266-267.)

3The categories are: “(1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official proceeding authorized
by law, (2) any written or oral statement or writing made in connection with an issue
under consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law, (3) any written or oral statement or writing made
in a place open to the public or a public forum in connection with an issue of public
interest, or (4) any other conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection with a public issue or
an issue of public interest.” (§ 425.16, subd. (e).)

7.
 Thus, the trial court’s ruling here was correct if (1) the causes of action in
Hernandez’s complaint were based on acts protected by section 425.16, and
(2) Hernandez failed to establish there was a probability he would prevail on the merits of
his causes of action.
Analysis
As far as we can discern from Hernandez’s complaint and brief, his arguments all
relate to statements Levatino made during judicial proceedings, i.e., the dissolution of
marriage proceedings during which Levatino represented Wife. Hernandez does not
suggest otherwise in his brief. Accordingly, we need not dwell on the first element in the
analysis as it appears the trial court correctly concluded Levatino was entitled to the
protection of section 425.16.
Instead, Hernandez apparently argues there is a probability he will prevail on the
merits, i.e., the complaint is legally sufficient and there is a prima facie showing of facts
sufficient to sustain a judgment in his favor. There are three overriding, and oft repeated,
themes in Hernandez’s attempts to establish an entitlement to relief.
1. Sale of the family residence
The first theme is Hernandez’s allegation that the family residence was sold below
its fair market value. According to Hernandez, this occurred because (1) the family
residence was “marketed” as a three-bedroom home even though it was a five-bedroom
home; (2) the extra two bedrooms existed because the garage was converted into two
bedrooms; (3) the conversion was completed with permits properly obtained from the
appropriate governing agency; and (4) someone mistakenly believed the conversion was
not done with the proper permits.
As we have made clear in the preceding paragraph, these are allegations made by
Hernandez, not facts that have been found true by any tribunal. We do not know if they
are true or false, nor is it necessary for us to reach a conclusion to resolve this issue. We
are merely repeating Hernandez’s allegations. This clarification is necessary because

8.
Hernandez has demonstrated a habit of taking statements out of context and interpreting
opinions, including the opinion from this court in the last appeal he filed, as standing for
unreasonable and incorrect propositions.
Returning to Hernandez’s argument, our observations are as follows. Hernandez
has not presented any competent evidence that this discrepancy, if it existed, affected the
market value of the home. His assertions simply are not competent evidence. Nor has
Hernandez explained why this issue was not dealt with at the time the house was
marketed.
Included in the record is a letter dated August 18, 2003, from Hernandez’s
attorney’s office to the real estate agent who handled the transaction stating Hernandez
was concerned because the home was being marketed as a three-bedroom home and also
asserting the garage conversion was permitted properly. There is no evidence that either
Hernandez or his attorney followed up on the issue. This record suggests the issue was
discussed and resolved before the sale.
Finally, if the issue was not resolved, Hernandez has not, and cannot, provide any
rational explanation why he did not do so before the house was sold. We emphasize the
sale closed in October 2003. The sale proceeds were divided shortly thereafter, with
various adjustments being made to each party’s portion of the proceeds. If the sales price
of the home was an issue, Hernandez could have, and should have, objected at that time.
If Hernandez had any question about the sales price, he should have investigated before
the offer was accepted. There is no possible justification for waiting years to address the
issue. These observations establish beyond any possible doubt there is no merit to this
argument.
We also note that there is no evidence Levatino had any involvement in the
marketing of the home. He cannot be liable to Hernandez for something he did not do.
Whether he was involved is now moot. When he opposed the motion at issue here,

9.
Hernandez was required to provide evidence that Levatino was responsible in some
manner for the marketing of the home. It is now too late to claim such evidence exists.
2. Sale of the 2000 Ford Windstar Van
The next issue on which Hernandez focuses is the sale of the van. Hernandez
contends Wife sold the van approximately four months after he filed a petition for legal
separation. According to Hernandez, Levatino represented to the trial court that the van
was sold “during [the] marriage.” According to Hernandez, this misrepresentation to the
trial court constituted fraud by Levatino. Hernandez also repeatedly asserts the van was
never sold.
The record belies Hernandez’s contention. Included in the documents Hernandez
filed with the trial court is a copy of the check in the amount of $12,300 from Heritage
Ford to Wife documenting Wife’s sale of the van. Hernandez’s claim that Wife never
sold the van simply is wrong.
Hernandez’s assertion that Levatino misrepresented facts to the trial court is
similarly meritless. The record demonstrates the parties agreed the van was community
property, Wife sold the van, and Wife retained the proceeds from the sale. No party
suggested otherwise. Whether the van was sold before or after Hernandez filed his
petition for legal separation is irrelevant.
Even if Hernandez’s assertion that Levatino told the trial court the van was sold
during the marriage is true, a contention on which we have no opinion, it was not material
and could not form the basis for a lawsuit. An action for fraud must be based on a
material representation. (People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921,
947.) It is absurd to claim the “representation” that the van was sold during the marriage
was material, relevant, or significant in any way.
Since the parties agreed the van was a community asset and was sold by Wife, the
only relevant and material issues were the sales price and the division of the proceeds.
The record establishes that during the dissolution proceedings Hernandez knew the van

10.
had been sold and negotiations occurred over the division of the proceeds. If Hernandez
was dissatisfied with the manner in which either issue was resolved, he should have filed
a motion in the trial court before the proceeds were divided. There is no possible
justification for waiting years to address the issue.
Hernandez also seems to suggest Wife was required to obtain permission from the
trial court before she sold the van. If so, Hernandez should have addressed that matter to
the trial court immediately. Once again, there is no possible justification for waiting
years to address the issue.
3. Levatino’s “appointment” as a trustee
Hernandez repeatedly asserts the trial court appointed Levatino to act as a trustee
for Wife and him, thus imposing on Levatino a fiduciary obligation to Hernandez. This
is simply wrong.
The trial court signed an order based on a stipulation reached between Hernandez
and Wife. The stipulation provided the family residence would be sold, named a realtor
to market the property, required all sale proceeds to be deposited into Levatino’s client
trust account, and required the parties to agree on the division of the sale proceeds. A
later stipulation by the parties provided each party would receive certain credits and
debits before the remaining proceeds were divided equally. This stipulation was signed
by Hernandez, his attorney, and made an order of the court. And this is exactly what
occurred. The proceeds from the sale were deposited into Levatino’s client trust account
and the funds were disbursed pursuant to the stipulation signed by Hernandez and his
attorney. These events were completed by early 2004.
These facts establish (1) Levatino was not a court-appointed trustee; (2) Levatino
was not a trustee for Hernandez; (3) Levatino did not owe Hernandez a fiduciary duty;
(4) if Hernandez was dissatisfied with the division of the sale proceeds or the sale price of
the residence, a motion should have been filed with the trial court at the time the events
occurred (2003); (5) there is no possible justifiable reliance by Hernandez on Levatino

11.
because Hernandez was represented by counsel during this transaction; and (6) there is no
possible justification for waiting years to address the issue(s).
Conclusion
In the final analysis, despite Hernandez’s exhaustive and emotional presentation,
there is no possibility he would have prevailed on the merits of the complaint. Thus, he
did not carry his burden on Levatino’s motion, and the trial court properly struck the
complaint.
II. Request for Judicial Notice
The next issue we discern from Hernandez’s brief is his assertion the trial court
erred when it denied a portion of his request for judicial notice and his subsequent request
for reconsideration.
Hernandez’s request for judicial notice filed in the trial court also is difficult to
understand. It appears Hernandez was asking the trial court to enter an order that various
allegations made in Hernandez’s complaint were true as a matter of law. Specifically,
Hernandez asserted the following acts allegedly committed by Levatino were undisputed
“facts”:
(1) Failed to protect Hernandez’s rights to his property;
(2) Failed to provide to Hernandez all the monies to which he was entitled;
(3) Failed to ensure that Hernandez received some unidentified vehicle pursuant
to the agreement of the parties;
(4) Concealed the whereabouts of the van;
(5) Deceived Hernandez by asserting the van was sold;
(6) Deceived the trial court by claiming the van was sold.
(7) Favored Wife’s interests over Hernandez’s interests;
(8) Treated Hernandez unfairly with respect to the division of marital assets; and
(9) Improperly sold the family residence below market value by marketing it as a
three-bedroom home instead of a five-bedroom home.

12.
 To support the assertion that these “facts” were undisputed, Hernandez submitted
a second request for judicial notice with various documents attached. The first group of
documents appears to be from the California Department of Motor Vehicles. They relate
to a 2000 Ford, which we assume is the van to which Hernandez repeatedly refers,
although this fact is never established. The first document in this group appears to be a
registration form indicating Jerry and Linda Davis as owners of the vehicle. The second
document in this group is titled “Application for Transfer by New Owner.” The new
registered owners on this document are Jerry and Linda Davis, and the seller listed on the
transfer is Heritage Ford. The document is dated December 23, 2001. The third
document in this group is a certificate of title showing the registered owner as Hernandez
or Wife, which was signed by Wife on September 13, 2001, transferring the van to
Heritage Ford. The final documents relate to the sale of the vehicle to Davis.
The next document attached to the request for judicial notice appears to be a
permit from the Stanislaus County Public Works Department related to the conversion of
the garage to two bedrooms and which we presume is related to the family residence.
The last three documents attached to the request are various court documents, to
which Levatino did not object. The trial court granted the request for judicial notice as to
the court documents, but denied the remainder of the request.
Governing statutes
Requests for judicial notice are governed by Evidence Code sections 450 through
453. Errors in denying judicial notice, if any occurred, are subject to harmless error
analysis. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569.) Evidence
Code sections 451 and 452 are relevant here.
Evidence Code section 451 requires the trial court to take judicial notice of the
following six categories of items:
(1) The decisional, constitutional, and statutory laws of California and the United
States.

13.
 (2) “Any matter made a subject of judicial notice by” Government Code sections
11343.6, 11344.6, or 18576, or “by section 1507 of Title 44 of the United States Code.”
(3) Rules of professional conduct for members of the State Bar.
(4) Rules of pleading, practice, and procedure of the federal judicial system.
(5) “The true signification of all English words and phrases and of all legal
expressions.”
(6) “Facts and propositions of generalized knowledge that are so universally
known that they cannot reasonably be the subject of dispute.” (Evid. Code, § 451, subds.
(a)-(f).)
Evidence Code section 452 gives the trial court discretion to take judicial notice of
the following eight categories:
(1) The decisional law and statutes of other states, as well as acts of Congress.
(2) Regulations and legislative enactments of the federal government or any other
public entity.
(3) Official acts of the federal government or any other state.
(4) Records of any court in California, the United States, or any other state.
(5) Rules of court of any court in California, the United States, or any other state.
(6) The laws of an organization of nations and public entities in foreign nations.
(7) “Facts and propositions that are of such common knowledge within the
territorial jurisdiction of the court that they cannot reasonably be the subject of
dispute.”
(8) “Facts and propositions that are not reasonably subject to dispute and are
capable of immediate and accurate determination by resort to sources of
reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(h).)
Analysis
None of Hernandez’s assertions fall within the requirements of Evidence Code
section 451. The only possible applicable category would be subdivision (f) of this

14.
section, which requires the trial court to take judicial notice of facts and proposition that
are universally known. These facts would include such matters as there are 5,280 feet in
a mile, or 60 minutes in an hour, or 31 days in January. Hernandez’s assertions do not fit
within this category.
Also, Hernandez’s assertions do not fit within any of the requirements of Evidence
Code section 452. His assertions are not propositions of common knowledge, nor are
they “not reasonably subject to dispute.” Indeed, Hernandez’s assertions fall into the
opposite category—propositions that are the subject of dispute and therefore would
require a trial to resolve if they had been raised timely. Because they were not raised
timely, as explained above, these assertions no longer have any legal significance.
We now turn to the documents submitted by Hernandez. Exhibit A is the group of
documents that appear to be from the California Department of Motor Vehicles. The
documents appear to have been stamped with the seal of the department. These
documents, however, were not properly authenticated as required by Evidence Code
section 1531. Moreover, Hernandez failed to provide admissible evidence that these
documents were indeed related to the van in question. Accordingly, the trial court did not
err in refusing to grant judicial notice to these documents. Even if there were error, any
error would be harmless, as explained above.
The other items submitted by Hernandez appear to be the permit to convert the
garage of the family residence into two bedrooms. Again, this document was not
properly authenticated pursuant to Evidence Code section 1531. Moreover, this
document appears to be nothing more than a permit application. Accordingly, the trial
court did not err and any possible error was harmless as explained above.
Motion for reconsideration
Finally, we address Hernandez’s motion for reconsideration of the trial court’s
denial of his request for judicial notice. In this motion, Hernandez presented additional

15.
documents and attempted to present testimony to establish that the documents were
related to the van and to the residence remodel. The trial court denied the motion.
Motions for reconsideration are governed by section 1008. Subdivision (a) of this
section provides, as relevant here, that when an application for an order has been refused
in whole or part, any party affected by the order may make an application to the judge to
reconsider the matter and make a new order. The application must be based on “new or
different facts, circumstances, or law,” and it must be made “within 10 days after service
upon the party of written notice of entry of the order.” (Ibid.)
The trial court denied Hernandez’s application because it was untimely. The
initial order denying Hernandez’s request for judicial notice was issued on March 8,
2012. The minute order was served on March 9, 2012. No notice of entry of order
appears in the record. The trial court thus erred to the extent it denied the motion on the
basis that it was untimely.
Nonetheless, there was no merit to the motion. “A motion for reconsideration may
only be brought if the party moving for reconsideration can offer ‘new or different facts,
circumstances, or law’ which it could not, with reasonable diligence, have discovered and
produced at the time of the prior motion. [Citations.] A motion for reconsideration will
be denied absent a strong showing of diligence. [Citation.]” (Forrest v. Department of
Corporations (2007) 150 Cal.App.4th 183, 202-203, disapproved on other rounds in
Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172, fn. 3.)
The additional documents on which Hernandez based his motion for
reconsideration were all related to the remodel of the family residence, which occurred in
approximately 1999, or the sale of the van, which occurred in 2001. Hernandez did not
attempt to establish that he was diligent in seeking these documents, nor can we envision
any possible explanation that would satisfy the diligence requirement.
Hernandez applied for the permits to remodel the family residence and was aware
that the process occurred. This is substantiated by the 2003 letter from his attorney to the

16.
real estate broker hired to sell the house making her aware that the conversion was
properly permitted. Hernandez could have obtained all of the relevant records from the
building department as soon as the issue arose, yet failed to do so. He was not diligent.
The same conclusion is reached when the sale of the van is considered.
Hernandez alleged that he did not receive proper credit from the proceeds of the sale of
the van. If this truly were an issue, and it is not, the documents could have been obtained
at that time, which was no later than 2004. Again, Hernandez’s failure diligently to seek
these documents precluded the trial court from granting his motion for reconsideration.
DISPOSITION
The judgment is affirmed. Levatino is awarded his costs on appeal.

_____________________
CORNELL, Acting P.J.

WE CONCUR:

_____________________
GOMES, J.

_____________________
PEÑA, J.

17.