Judge Deirdre Hill, Case 22TRCV00547 2022-09-07 Tentative Ruling

The court considered the moving papers. No opposition or reply papers have been filed.

On July 6, 2022 Plaintiff The Kobe Group, Inc. (“Plaintiff”) filed a Complaint for unlawful detainer against Defendants Maria Moore (“Maria”) and Sylvester Moore (“Sylvester”).

On August 9, 2022, the issued a Minute Order setting trial for August 23, 2022. The court mailed the minute order to Sylvester and Plaintiff.

On August 23, 2022, the court entered Default Judgment against Maria. Also, on that same date, the court held trial, and there was no appearance by Sylvester. The court noted that Sylvester was properly served with the Notice of Trial and had absented himself from the trial. After considering the evidence presented by Plaintiff at trial, the court entered judgment against Sylvester (the “Judgment”).

On August 29, 2022, Sylvester filed the instant Motion to Set Aside the Judgment. Also, on August 29, 2022, the court granted Sylvester’s Ex Parte Application to stay execution of the writ of possession/lock out, until after the court heard the instant Motion. The court ordered Sylvester to file a proof of service by personal service and either email or facsimile of the Notice of the instant Motion and the ruling in the Ex Parte Proceeding (no later than August 30, 2022 on or before noon). The opposition and reply (if any) were to be filed no later than September 1, 2022.

On August 30, Sylvester filed a proof of service reflecting that the Notice and Ex Parte Ruling were served on Plaintiff’s attorney by personal service, US Mail, and Email.

“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. R. Ct., rule 3.1113(b).)

Sylvester cites and quotes to several Code of Civil Procedure in his memorandum of point and authorities, as the basis on why the court may set aside the Judgment, which included Code of Civil Procedure sections 86(b)(3), 128(a)(8), 473(b), 473(d), 473.5. However, Sylvester simply cites to those code section and several cases without providing any discussion on the applicability of those statues and/or cases to the instant matter. Pursuant to California Rules of court, rule 3.1113(b), Sylvester was required to provide a discussion of the statutes and case cited and their application to the instant issue before the court. The court is not under a duty to determine how the statutes and cases cited allow the court to set aside the Judgment. (See Quantum Cooking Concepts, Inc. v. LV Associates, Inc.¿(2011) 197 Cal.App.4th 927, 934 [“[T]he¿trial¿court¿ha[s] no¿obligation¿to¿undertake¿its¿own¿search¿of the¿record¿backwards and forwards to try to figure out how the law applies to the facts’ of the case.])

In addition, a review of Sylvester’s declaration reveals that he represents that he did not receive the Summons and Complaint “at all or did not receive them in the legally required way.” (Sylvester Decl., ¶ 2.) As a preliminary matter, Sylvester’s declaration is confusing and contradictory. Sylvester first represents that he did not receiver the Summon and Complaint “at all” but then states that he did not receive it “in the legally required way.” Here, it is unclear whether Sylvester is contending that he did not receive the Summons and Complaint, or whether service of the same was deficient. To the extent that Sylvester contends that the service of the Summons and Complaint is deficient, he fails to provide any facts to support that contention or any discussion in his memorandum of points and authorities. Furthermore, Sylvester’s contention that service of Summons and Complaint is defective is undermined by his action of filing an Answer to the Complaint.

Moreover, Sylvester declaration reveals that he represents that he did not receive notice of the trial from the court until a day after the trial date. (Sylvester Decl., ¶ 2.) However, as noted above, on August 23, 2022, at trial, the court found that Sylvester was properly served with the Notice of Trial. (See August 29, 2022 Minute Order; August 9, 2022 Certificate of Mailing.) Similarly, as discussed above, due to Sylvester’s failure to discuss applicability of the statutes and case cited to the facts of this case, it is unclear how court’s service of notice of trial on August 9, 2022, which the court found was proper, and which Sylvester represents he did not receive until the day after trial, are grounds to set aside the Judgment. Sylvester is essentially asking that the court act as his litigator and determine what grounds (of the several set forth by Sylvester) have the strongest basis to set aside the judgment. The court is to be impartial, and shall not argue on Sylvester’s behalf how “how the law applies to the facts’ of the case.” The court finds that Sylvester has failed to meet his burden in providing sufficient facts and analysis on the applicability of the statutes and cases cited to show that he is entitled to setting aside the Judgment.[1]

[1] For the same reasons stated above, Sylvester’s representation that it would be unfair and cause his harm if the motion is denied fails to provide facts and analysis on the applicability of the statutes and cases cited to show that he is entitled to setting aside the Judgment..