Judge: Christian R. Gullon, Case: KC069267, Date: 2023-08-28 Tentative Ruling

Case Number: KC069267    Hearing Date: August 28, 2023    Dept: O

Tentative Ruling

Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) is TBD.

Background

This dispute arises between an attorney and a former client.

On April 26, 2017, Plaintiff Lilian Hoats filed suit against Defendant Maria Felix Briceno alleging that Defendant failed to pay her attorney’s fees and costs per the parties’ April 25, 2016 agreement and the balance due was $135,485.97.

On August 30, 2017, Defendant filed a cross-complaint against Plaintiff for breach of fiduciary duties.[1]

On May 23, 2022, the court issued the following minute order: “Off the record, settlement discussions commence. The matter settles in its entirety.” According to the order signed by the court, judgment was entered in favor of Plaintiff in the amount of $157,405.97. As part of the settlement, Defendant (Briceno) offered three (3) parcels of property located in Rosarito, Mexico as her method of satisfying the judgment, to wit: 1) Campo Real CL-145-004 Rosarito, Mexico; 2) Campo Real CL-166-024, Rosarito, Mexico and Campo Real CL-166-025 Rosarito, Mexico.

On November 17, 2022, Plaintiff filed a Notice of Motion and Motion to Set Aside or Vacate Judgment on 5/23/2022, Memorandum of Points and Authorities and Declaration of Lilian Demonteverde Hoats (CCP 473 and Extrinsic Fraud). That same day, Plaintiff filed a Substitution of Attorney wherein she indicated she would represent herself pro per in place of Counsel Michael F. Frank.

On February 22, 2023, re: Hearing on Motion to Set Aside/Vacate Judgment (CCP 473); Order to Show Cause Re: Satisfaction of Judgment, the court issued, in pertinent part, the following minute order: “The Court withdraws the Tentative Ruling. Court and counsel confer regarding the possibility of Judge Sirna hearing the Motion. Both counsel are in agreement with Judge Sirna hearing the motion. The Court will confer with Judge Sirna regarding the possibility of him hearing this motion. Plaintiff's Counsels request for additional time to obtain information regarding the property in Mexico is heard and granted. The parties are ordered to meet and confer regarding the Mexico property. Defense counsel is to confer with defendant and provide documentation indicating that the defendant is the owner of the Mexico property.” In addition, the court allowed for additional briefing: “Plaintiff's opening brief is to be filed and served by 7/14/2023. Defendant's opposition brief is to be filed and served by 08/07/2023. Plaintiff's reply brief is to be filed and served by 08/14/2023.”

On July 17, 2023, Plaintiff filed the instant supplemental brief.

On August 14, 2023, Defendant filed the opposition.

Discussion

As a prefatory matter, there are various defects with this motion.

First, the brief is 39 pages (with Plaintiff’s declaration, the total is 50 pages), which undeniably violates the California Rules of Court (CRC) Rule 3.1113’s fifteen-page requirement. That said, in deference to the policy that matters should be decided on their merits, the court, in its discretion, will consider the opposition despite the defect. (See Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696 [policy of the law is to have every litigated case tried upon its merits].). The court, however, admonishes Plaintiff to comply with the court rules and procedures with respect to future filings, should there be a need for such. Using its discretion pursuant to CCP section 436 (motion to strike), the court will treat Plaintiff’s future non-compliant filings as a late filed paper and disregard it in its entirety.[2] 

Second, as explained in the courts February 22, 2023 tentative, it is again unclear under what statute Plaintiff brings forth the instant motion, hence the court’s inability to provide a legal standard. The motion makes references to both fraud and mistake (473b); but the arguments and case law are primarily dedicated to extrinsic fraud. Therefore, as the gist of the motion speaks to extrinsic fraud (i.e., Defendant’s purported misrepresentation during settlement discussions that she owns the three properties in Mexico), the court will only address existence fraud.[3] (See Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 564; Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908 [Confusing label does not change the legal effect of the paper].)

Now, though the court allowed for further briefing for Plaintiff to provide evidence of fraud, Plaintiff has not met her burden. The only evidence Plaintiff provides is a March 6, 2023 report by an attorney in Mexico. (Supp. Brief p. 49 of 209 of PDF.) According to his email, he states the following:

Hi, this is the only proof you can get is the registered property certificate under marias [sic] name, you can print this and translated [sic] into English and this will work, this is the only property that she owns by herself, all the other properties are her and her ex-husband, did I answer your question? Let me know if I can do more to help, did you read my report?

(Motion, Ex. M, p. 208 of 209 of PDF.)

But this evidence is inadmissible for a handful of reasons.

First, this email and report are not authenticated. Therefore, they are inadmissible.

Second, the deeds that the attorney attaches to his email are in Spanish, not English. If the written characters in a writing offered in evidence are incapable of being deciphered or understood directly, a translator who can decipher the characters or understand the language be sworn to decipher or translate the writing. (Evid. Code, § 753, subd. (a).) That is another reason the evidence is inadmissible.

Third, even assuming the email/report was admissible, the properties subject to the stipulation do not match those discussed in the report. The following is a screenshot from the pertinent section of the May 23, 2022 ‘Stipulation re Settlement.’

Accordingly, the properties at issue in the settlement were parcels CL-145-004, CL-166-024, and CL-166-025 in Rosarito, Mexico. However, the report/evidence Plaintiff submits speak to properties WR037-004 and 062, neither which match the properties subject to the stipulation. The following is a screenshot of the report:

(It is unclear who owns the properties subject to the stipulation.) Thus, Plaintiff’s conclusion that Defendant concealed ownership of the properties subject to the stipulation is unsupported by evidence. Therefore, even if the evidence was admissible, the evidence is irrelevant.

Notwithstanding the foregoing, the motion filed on 11/17/22 contradicts the argument about extrinsic fraud raised in Plaintiff’s July 17, 2023 brief: Plaintiff appears to concede that Defendant owns the properties subject to the stipulation but that the amount required to satisfy the judgment may not be enough. (See 11/16/22 Motion, p. 3 [“Plaintiff relied on Defendant’s misrepresentation to her detriment. Plaintiff later discovered that the properties were not sufficient value to satisfy the judgment against defendant.”].)

All in all, while Plaintiff should be entitled to her attorney fees, Plaintiff has not provided evidence of any extrinsic fraud, and, in the alternative, has provided contradictory basis for relief (i.e., Defendant doesn’t own the properties versus Defendant owns the properties but not enough to satisfy the judgment).

Conclusion

Based on the foregoing, the court will determine the ruling at the conclusion of the hearing.