Department 58

Hearing Date: November 2, 2023

Case Name: Lord M. Rojas v. Chistopher Rivera

Case No.: 22STCV34028

Motion: Notice of Intention to Move for Order Setting Aside Judgment

Moving Party: Plaintiff Lord Rojas Jr.

Responding Party: Unopposed

Tentative Ruling: The Motion is denied.

Plaintiff Lord M. Rojas (Plaintiff) alleges he entered into a business partnership with Defendant Christopher Rivera to operate a recording studio; Plaintiff and Defendant also allegedly shared a romantic relationship. Plaintiff alleges Defendant never performed on his business obligations and withheld funds from Plaintiffs. On October 21, 2022, the Complaint was filed, alleging causes of action for (1.) breach of contract, (2.) breach of implied covenant of good faith and fair dealing, (3.) constructive trust, (4.) negligent misrepresentation, (5.) intentional misrepresentation, (6.) fraud, and (7.) intentional infliction of emotional distress.

On October 24, 2022, this Court set an Order to Show Cause for failure to file a proof of service (OSC) for March 1, 2023. On December 13, 2022 and December 15, 2022, Plaintiff filed proofs of service pertaining to Defendant. On March 1, 2023, there were no appearances at that hearing and the Court determined that the proofs of service were defective. Subsequently, the Court set an Order to Show Cause Re: Dismissal for Plaintiff's Failure to Appear for July 13, 2023. On July 13, 2023, there were, again, no appearances at this OSC and the Court dismissed this matter that same day.

On September 1, 2023, Plaintiff filed a motion to vacate the dismissal. No opposition was filed. There is no proof of service showing service of this motion on Defendant. On October 4, 2023, Plaintiff failed to appear for the hearing. The Court denied the motion to set aside or vacate the dismissal for procedural and substantive reasons.

On October 17, 2023, Plaintiff filed a “Notice of Intention to Move for Order Setting Aside, Judgment not Supported by Facts and to Enter a New Judgment.” No opposition was filed.

Although it is unclear under what statute Plaintiff seeks relief, the Court will treat the motion as seeking relief under either Code of Civil Procedure section 473 or Code of Civil Procedure section 1008. The Notice of Intention is denied.

Legal Standard

Code of Civil Procedure section 473:

Code of Civil Procedure section 473, subdivision (b) provides for either discretionary or mandatory relief from certain prior actions or proceedings in the trial court. (Luri¿v. Greenwald¿(2003) 107 Cal.App.4th 1119, 1124.)

“ ‘Under the discretionary relief provision, on a showing of “mistake, inadvertence, surprise, or excusable neglect,”¿the court has discretion to allow relief from a “judgment, dismissal, order, or other proceeding taken against”¿a party or his or her attorney.¿¿Under the mandatory relief provision, on the other hand, upon a showing by attorney declaration of “mistake, inadvertence, surprise, or neglect,”¿the court shall vacate any “resulting default judgment or dismissal entered.” ’ [Citation.] Applications seeking relief under the mandatory provision of section 473 must be ‘accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.’ The mandatory provision¿further adds that ‘whenever relief¿is granted based on an attorney’s affidavit of fault [the court shall] direct the attorney to pay reasonable compensatory legal fees and costs¿to opposing counsel or parties.’¿” (Ibid.; Code Civ. Proc., § 473, subd. (b).)¿¿

The party seeking such relief must do so “within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b); see Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.)

Code of Civil Procedure section 1008:

“Code of Civil Procedure section 1008 places strict jurisdictional limits on a litigant's ability to seek reconsideration of a prior ruling. [Citation.] Any application for reconsideration must comply with the provisions of section 1008 in order for the court to consider the request. [Citation.]” (Kinda v. Carpenter (2016) 247 Cal.App.4th 1268, 1278.)

Subdivision (a) of this statute allows a party to seek reconsideration of an order based on “new or different facts, circumstances, or law.” (Code. Civ. Proc., ¶ 1008, subd. (a).) In applying this subdivision, courts have required the moving party to demonstrate not only the grounds for reconsideration, but also a satisfactory explanation for the failure to present earlier the new circumstances, evidence, or law. (See, e.g., Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 689; Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028.)

Code of Civil Procedure section 1008, subdivision (b) governs renewed motions and motions for reconsideration. Similarly, it provides: “A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown 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.”

Discussion

In Plaintiff’s prior motion to vacate he stated that he was entitled to discretionary relief based on mistake, inadvertence, and/or surprise. Specifically, he submitted evidence that he was “dealing with the death of [his] father [and] . . . was not ready or able to present [his] case in chief.” (Rojas Decl., ¶ 4.) He further contends that he had “a mountain of paperwork to prep and so many bills to pay due to Fathers [sic] death.” (Rojas Decl., ¶ 4.)

While the Court was sympathetic to Plaintiff’s circumstances, Plaintiff had not shown how any of those issues interfered with his ability to prosecute and participate in this case. Plaintiff provided no specific details, such as the date of his father’s death, or when Plaintiff was too ill to appear in order to put these events in the context of the missed court proceedings and determine the reasonableness of Plaintiff’s conduct.

Moreover, while Plaintiff stated that “once [he] saw [he] missed [his] court date [he] immediately prepared this declaration and order” (Rojas Decl., ¶ 4), the Court noted that this declaration was prepared on August 8, 2023, but no motion was filed until September 1, 2023 – undermining Plaintiff’s claim that he proceeded diligently upon the discovery of his mistake. The clear absence of any details surrounding the failure to appear for the multiple OSC’s was fatal to Plaintiff carrying his burden of showing mistake, inadvertence or surprise. Thus, for this substantive reason, the motion was denied.

Additionally, Plaintiff failed to demonstrate service of this motion on Defendant. Thus, this motion was also denied for procedural reasons.

On this new “notice of intention” motion, Plaintiff argues he was unable to appear at the last hearing because of the death of his father and, additionally, he was the victim of a home invasion burglary. (Mot., 5:1-3.) However, Plaintiff submits no evidence at all in support of his substantive arguments. Again, he specifies no dates of these events and why they precluded him from arranging to have Defendant served and filing a valid proof of service. In the absence of any evidence, Plaintiff satisfies neither the requirements to set aside a dismissal under Code of Civil Procedure section 473, subdivision (b), or a motion for reconsideration under Code of Civil Procedure section 1008.

If Plaintiff files any further unmeritorious motions to vacate the dismissal, the Court will consider whether he should be deemed a vexatious litigant.

Conclusion

Accordingly, the motion is denied.