Judge: Christopher K. Lui, Case: 20STCV46766, Date: 2024-05-07 Tentative Ruling
Case Number: 20STCV46766 Hearing Date: May 7, 2024 Dept: 76
Plaintiffs allege that Defendants failed to repay loans and the checks they presented bounced.
Defendants filed a Cross-Complaint alleging usury violation and unlawful debt collection practices.
On November 20, 2023, following a bench trial, the Court issued a Statement of Decision and entered judgment in accordance therewith.
Cross-Complainants/Defendants Soon Kym Lee and Sang Hi Kim move for a new trial.
TENTATIVE RULING
Cross-Complainants/Defendants Soon
Kym Lee and Sang Hi Kim’s motion for a new trial is DENIED.
ANALYSIS:
Motion For New Trial
On November 20, 2023, following a bench trial, the Court issued a Statement of Decision and entered judgment in accordance therewith. Cross-Complainants/Defendants Soon Kym Lee and Sang Hi Kim move for a new trial.
Civ. Proc. Code,
§ 659(a) provides:
(a) The party intending to move for a new trial shall file with the clerk
and serve upon each adverse party a notice of his or her intention to move for a
new trial, designating the grounds upon which the motion will be made and whether
the same will be made upon affidavits or the minutes of the court, or both, either:
(1) After the decision is rendered and before the entry of judgment.
(2) Within 15 days of the date of mailing notice of entry of judgment by
the clerk of the court pursuant to Section 664.5, or service upon him or her by
any party of written notice of entry of judgment, or within 180 days after the entry
of judgment, whichever is earliest; provided, that upon the filing
of the first notice of intention to move for a new trial by a party, each other
party shall have 15 days after the service of that notice upon him or her to file
and serve a notice of intention to move for a new trial.
(b) That notice of intention to move for a new trial shall be deemed to
be a motion for a new trial on all the grounds stated in the notice. The times specified
in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation
or by those provisions of Section 1013 that extend the time for exercising a right
or doing an act where service is by mail.
(Civ. Proc. Code, § 659 [bold emphasis and underlining
added].)
The notice of
entry of judgment was served by mail on November 20, 2023. Cross-Complainants/Defendants
served their notice of intent to move for a new trial on March 7, 2024—108 days
later. The motion for new trial appears untimely and, on that basis would be denied
for lack of jurisdiction. However, Cross-Complainants/Defendants contend that
the notice of entry of judgment was not served on their counsel of record, but
mistakenly sent to another attorney. If so, the service of the notice of entry
of judgment would have been improper and would not subject the motion to the
15-day limit on service of a notice of entry to move for new trial.
Regardless of
whether the motion is timely, the Court finds that grounds for granting a new trial
do not exist.
Moving parties
claim irregularity in the proceedings or any order of the court or abuse of discretion
by which either party was prevented from having a fair trial. (Civ. Proc. Code,
§ 657(1).)
[T]he trial court, no less than the appellate court,
is expressly enjoined by article VI, section 4 1/2 [now § 13], of our Constitution
from granting a new trial for error of law unless such error is prejudicial. If
it clearly appears that the error could not have affected the result of the trial,
the court is bound to deny the motion. (Citations omitted.)
(Bristow v. Ferguson
(1981) 121 Cal.App.3d 823, 826.)
" '[T]he trial court is bound by the rule
of California Constitution, article VI, section 13, that prejudicial error is the
basis for a new trial, and there is no discretion to grant a new trial for harmless
error. [Citation.] . . . The grant of a new trial for harmless error violates the
constitutional provision and wastes judicial time and resources to no purpose. [P]
Accordingly, the order granting a new trial is valid only if prejudicial error occurred
at the trial.' [Citation.]" ( Garcia v. County of Los Angeles (1986) 177 Cal.
App. 3d 633, 641, [223 Cal. Rptr. 100].)
(Garcia v. Rehrig Internat., Inc. (2002) 99 Cal. App. 4th 869, 875.)
Matters of “irregularity
in the proceedings” are not those which “can be called to the attention of the court
at the time the incident occurs and to which objections and a request to admonish
the jury may be made and a ruling thereon obtained from the court. ‘Irregularity
in the proceedings’ (§ 657, subd. 1) ‘is intended to refer to matters which appellant
cannot fully present by exceptions taken during the progress of the trial, and which
must therefore appear by affidavits.’ (Citations omitted.)” (Gibbons v. Los Angeles
Biltmore Hotel Co. (1963) 217 Cal.App.2d 782, 791-92.) “It also seems to be
the rule that where such irregularity is relied upon, the moving party must show
affirmatively that both he and his counsel were ignorant of the facts constituting
the irregularity charged until the rendition of the verdict, since it is settled
that a party may not remain quiet, taking his chances upon a favorable verdict,
and, after a verdict against him, raise a point of which he knew and could have
raised during the progress of the trial. (Citation omitted.)” (Gray v. Robinson
(1939) 33 Cal. App. 2d 177, 182-83.)
Moving parties
have not identified any such irregularities which could not have been called to
the attention of the court the time they occurred, or of which he was ignorant during
the trial. Moving parties argue that the Court committed error in finding that Cross-Complainants/Defendants
initiated the usurious transaction because it does not make sense.
However, the
Court weighed the credibility of the evidence and found that Defendants were the
ones who suggested the 10% interest rate. The fact that they paid amounts which
were consistent with a 10% per month interest rate implies that Defendants’ suggested
interest rate was monthly, not yearly. (Statement of Decision, Pages 2, 3, 4, 10,
12, 13.
Moving parties
also argue that the Court erred in not awarding treble damages despite finding that
Cross-Defendants/Plaintiffs violated the usury law. However, the court has discretion
whether to award such penalties. (Creative Ventures,
LLC v. Jim Ward & Associates (2011) 195 Cal. App. 4th 1430, 1450.) The Court
properly exercised its discretion given the finding that Defendants suggested the
usurious interest rate.
This does not state a ground for a new trial.
Moving parties also argue that the Court
awarded excessive damages. (Civ. Proc. Code, § 657(5).) Moving parties argue that
Defendant testified and there was evidence that payments in the total amount of
$213,500 were made to Plaintiffs. Defendant
argues that the principal balance should thus be $177,810 ($391,400 - $213,590),
not $285,240.
The
measure of damages suffered is a factual question and as such is a subject particularly
within the province of the trier of fact. For a reviewing court to upset a jury's
factual determination on the basis of what other juries awarded to other plaintiffs
for other injuries in other cases based upon different evidence would constitute
a serious invasion into the realm of fact finding." (Citation omitted.) The judge is not permitted to substitute his
judgment for that of the jury on the question of damages unless it appears from
the record the jury verdict was improper.
(Bigboy v. County of San Diego (1984)
154 Cal.App.3d 397, 406-07 [bold emphasis added].)
Here, the Court
was acting as the trier of fact, and acted within its province in determining the
amount of damages, taking into consideration the credibility of the evidence. In
this regard, the Court made the following findings of fact:
The Court believes that
in this case, as in many situations, the truth lies somewhere between
the parties’ assertions. Based on its consideration of the testimony and the
evidence, the Court finds that the total amount borrowed by Defendants is $391,400,
which represents Defendants’ analysis of Plaintiffs’ documents. (Exhibit 111.) The
Court also credits Defendant Kim’s testimonial statement that Defendants paid
$107,300 in interest.
In the absence of credible
testimony or definitive documentary evidence of how any payments were applied to
loan principal, the Court finds there is no basis in the evidence to credit Defendants
with payments towards principal. However, as a matter of usury law, the
Court must credit any interest payments towards the principal balance.
(Hardwick, supra, 11Cal.App.5th at 979.) Applying the legally required presumption
that any payments must be applied to principal, the Court finds that Defendants
have an unpaid principal balance of $284,100 due and owing to Plaintiffs.
The Court finds in favor
of Plaintiffs and against Defendants Sang Hi Kim and Soon Kym Lee on the Second
Cause of Action, in the amount of $284,100. Because of the usurious interest rate
at which the loan was made, Plaintiffs are not entitled to claim any interest on
this amount.
(Statement of Decision, Page 12 [bold emphasis
and underlining added].)
As such, the Court does not find this ground for new trial to be persuasive.
For all of the foregoing reasons, the
motion for a new trial is DENIED.