Judge Christian R. Gullon, Case Number: 23STCV05277, Date: 2024-12-03 Tentative Ruling

Judge: Christian R. Gullon, Case: 23STCV05277, Date: 2024-12-03 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

(1) MOTION TO SET ASIDE AND VACATE JUDGMENT DUE TOEXTRINSIC FRAUD AND LACK OF NOTICE TO PETITIONER REGARDING CONTINUED TRIAL DATE is GRANTED; both Defendants and the court made an error by sending notices to an incorrect address; the address is Palomino drive, not Pacomino Drive.

(2) PLAINTIFF'S MOTION FOR ATTORNEY FEES is MOOT; because the motion is predicated upon being the prevailing party, the motion for attorney fees is moot.

This action pertains to the HOA’s bylaws. Petitioner/Plaintiff CYNTHIA ESCUTIA-COBIAN in her petition states, inter alia, that two persons elected to the Board of Directors, Isabel Hsieh and Karen Lee, are not resident Unit Owners” as neither live in any condominium of in the Fall Creek community but rent the units to third parties, in violation of Article IV of the bylaws.

On March 9, 2023, Plaintiff filed the instant ‘petition for writ of mandate, declaratory relief, and injunction.’

On April 27, 2023, Plaintiff filed the instant motion for preliminary injunction.

On July 13, 2023, the court issued, in pertinent part, the following minute regarding Plaintiff’s ex-parte application ‘For Temporary Restraining Order Pending Hearing On Preliminary Injunction And Order To Advance The Hearing On The Preliminary Injunction Presently Set For Hearing On October 9, 2023’: “The moving party has failed to make an affirmative factual showing of irreparable harm, immediate danger, or any statutory basis for granting relief Ex Parte pursuant to California Rules of Court 3.1202(c).”

On July 21, 2023, Respondents filed a verified answer to the first amended petition.

On July 26, 2023, Respondents filed a cross-complaint against Plaintiff for Violation/Breach of the Governing Documents; Injunctive Relief; and Damages. (Based upon a review of the cross-complaint, it is predicated upon the allegation that the HOA has determined it is necessary to re-pipe all of the buildings within the development, but Plaintiff has refused to allow the HOA access to Plaintiff’s unit for the re-pipe project.)

On September 21, 2023, Plaintiff filed a substitution of attorney (replacing William B. Hanley with Feldsott, Lee & Nichter).

On November 1, 2023 (after supplemental briefing), the court denied Plaintiff’s motion for a preliminary injunction. Specifically, Plaintiff sought an injunction for an order that Respondents (a) comply with Article IV that only resident unit owners serve as members of the board of directors and (b) remove Hsieh and Lee as neither are ‘resident unit owners’ as required by the bylaws, but Defendants evidenced showed that respondents are resident unit owners. As for Plaintiff’s contention that the 2017 amendment is invalid, the one-year statute of limitations passed pursuant to Cal. Civ. Code, § 5145(a) and Cal. Civ. Code, § 5100(a) - amendment of the governing documents.

On April 8, 2024, Plaintiff filed an ex parte to ‘Postpone Management Conference Due to a Medical Emergency.’ (The ex parte did not state the medical emergency.) Additionally, the address on the ex-parte provides the following address: 364 S. Prospectors Road, Unit #134 in the city of Diamond Bar.

On April 9, 2024, the court granted the ex parte. The CMC was continued to 5/7/24. There was no appearance at the ex parte hearing by Plaintiff, but Plaintiff’s husband did appear via LA CourtConnect.

On May 3, 2024, the court granted the ex parte and continued to the 5/7/24 CMC to 5/29/24. There was no appearance by Plaintiff. The ‘Certificate of Mailing’ filed by the court provides that service was sent to “23545 Pacomino Drive Unit 263 Diamond Bar, CA 91765.”

On May 29, 2024, the court held its CMC. The Plaintiff did appear at that hearing. The minute order provides, in relevant part, the following: “Plaintiff's oral motion for a continuance to hire counsel is heard and DENIED …. Final Status Conference is scheduled for 09/09/2024 at 10:30 AM in Department O at Pomona Courthouse South. Non-Jury Trial is scheduled for 09/16/2024 at 10:30 AM in Department O at Pomona Courthouse South. Defense dCounsel is to give notice.”

On September 4, 2024, Defense Counsel sent an ‘Notice of Ruling”; the ruling was sent to “Pacomino” Drive.

On September 9, 2024, there were no appearances at the FSC; the court continued the hearing to 9/16/24. Notice was sent by the court to a “Pacomino” address.

On September 11, 2024, Plaintiff filed a Peremptory Challenge. The Plaintiff’s listed addressed used a PALOMINO Drive address.

On September 16, 2024, Plaintiff filed a ‘Motion to Postpone Due to Medical Emergency.’ The doctor’s note attached did not provide an explanation of the illness aside from the fact that she was seen for an “acute medical illness” (p. 4 of 7 of PDF) and that she should “rest and engage in therapeutic interventions.” (p. 3 of 7 of PDF.) Of note, the note was signed by an LMFT. That same day, the court held its non-jury trial and FSC. There was no appearance by Plaintiff. The minute order provides the following:

The Court is in receipt of Petitioner's Notice of Motion to Postpone Due to Medical Emergency, filed this date. Said Motion does not detail what the medical condition is or why it necessitates a continuance.[1] The Court does not rule on Petitioner's Motion, but understands that Petitioner may have a medical issue. The instant matters are continued to September 24, 2024 at 11:00 a.m. If Defense Counsel is able to obtain additional information (as to Petitioner's status), he may provide it to the Court, along with any requests for the Court to take action next date. Accordingly, the Non-Jury Trial scheduled for 09/16/2024, and Final Status Conference scheduled for 09/16/2024 are continued to 09/24/2024 at 11:00 AM in Department O at Pomona Courthouse South. Respondent's Counsel is ordered to give notice. (emphasis added).

The notice, sent on 9/19/24 by Defense Counsel, was sent to the “Pacomino” address.

On September 24, 2024, the court held its FSC and non-jury trial. The minute order states in full the following:

The matters are called for hearing. There is no appearance made by or for the Plaintiff. The Court and Counsel confer regarding the status of the case. The Petition Writ of Mandate filed by Cynthia Escutia-Cobian on 03/09/2023 is Off Calendar. Defense Counsel files a cross-complaint in open court. Defense Counsel's witness, Isabel Shih, is sworn and testifies. Defense Counsel's Exhibit H (1-page Analysis spreadsheet) is referenced. The Court orders Defense counsel to submit a judgment on the cross-complaint on or by end of business day September 25, 2024.

On September 25, 2024, the court issued a nunc pro tunc stating that “The Petition Writ of Mandate filed by Cynthia Escutia-Cobin on 03/09/2023 is dismissed without prejudice.”

On September 26, 2024, the court signed the judgment dismissing Plaintiff’s first amended petition, allowing Defendants/Respondents to recover attorney fees, and enjoining Plaintiff from interfering with various projects/construction.

On October 1, 2024, Defendant filed a Notice of Entry of Judgment, which was sent to a “Pacomino” address.

On October 29, 2024, Plaintiff filed a substitution of attorney was filed naming Peter D. Gordon as Plaintiff’s attorney. That same day, Plaintiff filed a motion to set aside/vacate judgment.

On November 18, 2024, Plaintiff filed an opposition to the attorney fees motion. That same day, Defendants filed an opposition to Plaintiff’s motion to vacate the judgment, along with evidentiary objections.

On October 22, 2024, both parties filed respective replies to their respective motions.

According to Plaintiff, the only reason that she did not attend the trial on September 24, 2024, was due to lack of notice.[3] The Notice of Ruling of the trial continuance from 9/16 to 9/24 indicates the notice was served on a non-existent address on “Pacomino Drive” (a non-existent street). The lack of actual notice to Petitioner resulted in judgment being entered against Plaintiff in absentia and prevented her from presenting her case on her Petition as well as her defense of the Cross-Complaint. (Motion p. 1.) Based thereon, Plaintiff brings forth the motion pursuant to CCP section 473 subdivisions (b) (excusable neglect and mistake)[4] and (d) (judgment was void due to lack of notice) and the court’s equitable powers.[5]

Here, Defendant contends that notice was given to a Pacomino drive address, which tacitly concedes the address was incorrect. (Opp. p. 7: As 5-7; see also Opp. p. 8:12-14 [“The "wrong address" argument fails because the Association and this Court utilized the address provided by Petitioner. If it was wrong, Petitioner has a legal obligation to complete a change of address form and file with the Court. This was Petitioner's own fault.”].) As indicated in the procedural history above, the court and Defendant made an inadvertent clerical error sending the various notices to a PaComino Drive address instead of Plaintiff’s address at PaLomino drive. Accordingly, the contrary of Plaintiff’s contention, it was not Petitioner's fault that prior notices were mailed to the wrong address. (Opp. p. 5-6.)

Under CCP 473 subdivision (b), “[t]he court may, upon any terms as may be just, relieve a party [] from a judgment, dismissal order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” One has made a mistake of fact when she understands the facts to be other than they are. (Motion p. 8, citing H. D. Arnaiz, Ltd. V. County of San Joaquin (2002) 96 Cal. App. 4th 1357, 1368.) “A mistake sufficient to vacate . . . may be found where a party, under some erroneous conviction, does an act he would not do but for the erroneous conviction.” (Id. at p. 1369.) Here, Plaintiff did not appear at the FSC and trial because she was not informed of the continued trial date (i.e., excusable mistake). (See Motion p. 7, quoting Jones v. Lindsey (1952) 114 Cal. App. 2d 237, 238 [“The fact that plaintiff and his counsel did not have notice of the trial is sufficient for the trial court's ruling [vacating the judgment].”]; see also Tearney v. Riddle (1944) 64 Cal.App.2d 783 [trial court’s ruling to vacate a judgment pursuant to 473 when record showed the party did not receive notice of a motion hearing].)

Relief is also available under the court’s equitable powers. (See Motion p. 5, quoting Evry v. Tremble (1954) 154 Cal.App.2d 444, 448 [“One who has been prevented by extrinsic factors from presenting his case to the court may bring an independent action in equity to secure relief from the judgment entered against him….”].)

These facts amount to excusable neglect and mistake sufficient for purposes of a §473 motion, notably when promptly done.

Based on the foregoing, as neither this Court and Defense Counsel utilized the address provided by Plaintiff, section 473 and equitable relief are available to grant the motion. Consequently, Defendant’s motion for attorney fees is moot (as there is no judgment to collect attorney fees upon.)

[1] The instant motion states that Plaintiff was diagnosed with COVID-19 on 9/15/24 and prescribed Paxlovid. (Motion to Set Aside Judgment, Ex. 6, p. 65 of 68 of PDF.)

[2] To the extent that Plaintiff/Petitioner argues Defendant/Respondent should have emailed notice of the hearing instead of mailing it, not so. Absent an agreement between the parties that electronic service is permitted, service must be made by mail. Here, the court sees no such agreement. Therefore, Defendant’s method of service was proper.

[3] Plaintiff states that she only learned of the judgment when Defense Counsel Moreno circulated a letter to the owners of the Fall Creek HOA on 10/3/24 informing them of the judgment.

[4] Under CCP 473 subdivision (b), “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.”

[5] A trial court may grant relief from an order or judgment under its inherent equity power if, because of the fraud of the opponent, the aggrieved party was prevented from presenting their claim or defense to the court. (Pittman v. Beck Park Apartments Ltd., 20 Cal. App. 5th 1009, 230 Cal. Rptr. 3d 113 (2d Dist. 2018); County of San Diego v. Gorham, 186 Cal. App. 4th 1215, 113 Cal. Rptr. 3d 147 (4th Dist. 2010).) “Extrinsic fraud occurs when a party is deprived of the opportunity to present his claim or defense to the court; where he was kept ignorant or, other than from his own negligence, fraudulently prevented from fully participating in the proceeding.” (City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067.)
Although the grounds for equitable relief are commonly stated as being extrinsic fraud or mistake, those terms are given a broad meaning and tend to encompass almost any set of extrinsic circumstances that deprive a party of a fair adversary hearing. It does not seem to matter if the particular circumstances qualify as fraudulent or mistaken in the strict sense. (In re Marriage of Park (1980) 27 Cal.3d 337, 342.)