Judge Cynthia A Freeland, Case 37-2020-00007435-CU-BC-NC 2024-01-12 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2020-00007435-CU-BC-NC, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - January 11, 2024

01/12/2024 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Breach of Contract/Warranty Motion Hearing (Civil) 37-2020-00007435-CU-BC-NC NAVY FEDERAL CREDIT UNION VS STEFAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/05/2023

Defendant Kasian Stefan ('Defendant')'s motion to vacate and reconsider the court's June 7, 2023 Statement of Decision (the 'Statement of Decision') (see ROA No. 208) is denied.

Initially, the court notes that Defendant has not demonstrated that he provided Plaintiff Navy Federal Credit Union ('Plaintiff') with proper notice of the hearing on this matter. See Cal. Code Civ. P. § 1005(b). More specifically, Defendant's proof of service is dated July 5, 2023; however, the proof of service indicates that Plaintiff's counsel was served with the moving papers via U.S. mail on July 5, 2022. While this may be a typo, the court cannot conclude that this deficiency was not prejudicial given that Plaintiff did not file an opposition to the pending motion.

Although Defendant's motion is styled as a 'Motion to Vacate and Reconsider Decision Dated June 7, 2023,' the only authority Defendant cites in support of his request is California Code of Civil Procedure ('CCP') § 1008. Toward that end, the court finds that Defendant has not demonstrated entitlement to the requested relief. CCP § 1008(a) provides, in relevant part, that: When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state 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.

Cal. Code Civ. P. § 1008(a).

A party seeking reconsideration must provide a sufficient explanation for failing to present the information, i.e., the purportedly new facts, circumstances, or law, at the first hearing. See Morris v. AGFA (2006) 144 Cal. App. 4th 1452, 1460; Garcia v. Hejmadi (1997) 58 Cal. App. 4th 674, 690. Even if the moving party satisfies its burden, reconsideration does not require that the court change its mind. If CCP § 1008's requirements have been met to the court's satisfaction, but the court is not persuaded that its earlier ruling was erroneous, the proper course is to grant reconsideration and to reaffirm the earlier ruling. See Blue Mountain Development Co. v. Carville (1982) 132 Cal. App. 3d 1005, 1011-1012.

In this case, Defendant's motion for reconsideration fails for at least five reasons. First, CCP § 1008(a) is not the proper procedure for objecting to a statement of decision after a court trial. CCP § 1008(a) Calendar No.: Event ID: TENTATIVE RULINGS

2993311 CASE NUMBER: CASE TITLE: NAVY FEDERAL CREDIT UNION VS STEFAN [IMAGED] 37-2020-00007435-CU-BC-NC applies to a decision by a court on a motion or other 'order' – it does not apply to statements of decision.

Second, even if Defendant could seek reconsideration of the Statement of Decision under CCP § 1008(a), which he cannot, the court would find that the motion was untimely. The court filed and served its Statement of Decision on June 7, 2023. See ROA Nos. 207-208. Defendant thus had 10 days – or until June 17, 2023 – to file and serve the pending motion. He did not do so until July 5, 2023. CCP § 1008(a)'s timing requirement is jurisdictional, i.e., the court lacks jurisdiction to consider an untimely motion for reconsideration. See Marriage of Furie (2017) 16 Cal. App. 5th 816, 831.

Third, even if: (1) Defendant could seek reconsideration of the Statement of Decision (he cannot), and (2) the motion was timely (it was not), the court would still lack jurisdiction to rule on the motion in light of the Judgment that has been entered in this matter. On August 30, 2023, the court entered Judgment in Plaintiff's favor and against Defendant. See ROA No. 216. Plaintiff filed and served a Notice of Entry of Judgment on September 15, 2023. See ROA Nos. 218-219. After entry of judgment, the court lacks further power to rule on a motion for reconsideration. This is true even where, as here, a motion for reconsideration was pending when judgment was entered. See APRI Ins. Co. v. Sup. Ct. (1999) 76 Cal. App. 4th 176, 181-182.

Fourth, even if: (1) Defendant could seek reconsideration of the Statement of Decision (he cannot); (2) the motion was timely (it was not); and (3) the court had jurisdiction to rule on the motion (it does not), the court would find that the motion is procedurally deficient. More specifically, and as set forth above, a motion for reconsideration under CCP § 1008(a) must be accompanied by an affidavit stating 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. In this case, Defendant has not submitted a declaration/affidavit or any evidence in support of the motion, let alone one that complies with the prescriptions of CCP § 1008(a). A motion for reconsideration under CCP § 1008(a) that is filed and served without a supporting affidavit is invalid. See Branner v. Regents of Univ. of Calif. (2009) 175 Cal. App. 4th 1043, 1048.

Fifth, notwithstanding the foregoing jurisdictional and procedural deficiencies, even if the court were to sua sponte proceed to the motion's merits, the court nevertheless would find that Defendant has failed to demonstrate the requisite new or different facts, circumstances, or law warranting reconsideration of the Statement of Decision. Indeed, the court has previously rejected Defendant's arguments either in the context of other motions or at trial. Specifically, Defendant contends that he never received responses to discovery he propounded on Plaintiff in April 2022. However, the court, in its September 15, 2023 Minute Order denying Defendant's motion to stay all proceeding pending completion of discovery (see ROA No.

221), explained to Defendant that he had remedies available to him to compel Plaintiff's compliance with his discovery requests under the Civil Discovery Act – Defendant chose not to avail himself of those remedies until he filed and served his motion to compel on May 8, 2023 (see ROA No. 182) (roughly three weeks before trial call). Moreover, Defendant scheduled his motion to compel for a hearing on November 17, 2023 – well past the conclusion of trial and entry of Judgment in this matter. Defendant did not take any action to obtain an earlier hearing date. Regardless, Defendant fails to articulate how Plaintiff's alleged discovery abuses and/or Defendant's failure to obtain purportedly relevant discovery prejudiced him and/or prevented him from setting forth a complete defense at trial. Indeed, as the court explained in its Statement of Decision, while Plaintiff's counsel and Defendant identified various exhibits during their respective cases-in-chief and through their respective examinations of witnesses, no party requested that any trial exhibit be admitted into evidence. As a result, the court, in issuing its Statement of Decision, considered as evidence only the testimony proffered by the witnesses – not the identified trial exhibits themselves.

Further, the court has previously considered, and respectfully rejected, Defendant's request that trial be continued given Defendant's medical issues (see ROA No. 178). The court did, however, provide Defendant with Communication Access Realtime Translation ('CART') at his request as an accommodation. See ROA No. 202. To the extent that Defendant contends, without evidentiary support, that he has not been provided a copy of the trial transcript, such alleged issue does not constitute a new Calendar No.: Event ID: TENTATIVE RULINGS

2993311 CASE NUMBER: CASE TITLE: NAVY FEDERAL CREDIT UNION VS STEFAN [IMAGED] 37-2020-00007435-CU-BC-NC or different fact, circumstances, or law warranting reconsideration of the Statement of Decision.

In addition, to the extent Defendant continues to argue that he has been the victim of identity theft, the court considered that contention at trial and respectfully found Plaintiff's branch manager, Eva Esposito's, testimony on that subject to be more credible.

Finally, Defendant's contention that Judge Freeland has/had a conflict of interest was, and remains, unavailing and without evidentiary support. Defendant provides no evidence of any case(s) or any information that would have created a conflict of interest for Judge Freeland – other than the vague, blanket assertion that Judge Freeland was previously involved with 'a related case involving identity theft that occurred to Defendant in which a property was rented using Defendant's name without his knowledge or consent.' See Defendant's Motion, p. 5, ¶ 9, ll. 2-4. Moreover, as the court explained in its September 15, 2023 Minute Order, to the extent Defendant's argument can be construed as a peremptory challenge, such challenge is untimely.

In light of the foregoing, the court denies Defendant's motion to vacate and reconsider the Order.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, January 12, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of January 12, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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