Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Defendant Marcia Kirschbaum  

 

RESPONDING PARTY: Plaintiff Tamara Bitner 

BACKGROUND 

This case is an unlawful detainer action.  Plaintiff Tamara Bitner is suing Defendant Marcia Kirschbaum for back rent and possession of property located at 833 Pine St., Santa Monica, CA 90405 Los Angeles County (the “Property”).   

Trial in this matter was held on August 9, 2023.  Defendant failed to appear.  Plaintiff was sworn and testified on her own behalf.  Plaintiff requests $40,000 for past due rent, $32,000 for holdover fees and attorney costs to be submitted to the Court.  The Court found in favor of Plaintiff.   

This hearing is on Defendant’s motion to set aside judgment and any default and to quash any writ of possession or execution.  Defendant argues the judgment (1) was a “tort conversion of a trust instrument”, (2) was “trespass of chattel”, (3) lacked “subject matter jurisdiction,” (4) lacked “exclusive equity jurisdiction,” (5) lacked “[]proper venue”, and (6) is “invalid/void” and any writ of possession or execution “used to enforce the judgment was improperly issued.”  Defendant is appearing in pro per.  No opposition has been filed as of the posting of this tentative ruling. 

ANALYSIS 

 

The Court treats Plaintiff’s motion to set aside judgment and/or default as a motion for new trial.  Notice of intention to move for new trial must be filed within fifteen days of notice of entry of judgment.¿ (Code Civ. Proc., § 659(a)(2).)¿ Within ten days of filing the notice of intention to move for a new trial, the moving party must serve and file the memorandum and any supporting affidavits.¿ (Code Civ. Proc., § 659a.)¿ 

Here, Defendant filed a motion to set aside judgment and/or default on August 21, 2023.  At the time she filed her motion, there was no judgment entered.  Accordingly, her motion is premature.  (Ochoa v. Dorado (2014) 228 Cal. App. 4th 120, 133 (motion for new trial and judgment notwithstanding the verdict were premature, of no effect and void for all purposes where there was no decision at the time that defendants' notice of intention to move for a new trial was filed).) 

Moreover, “[e]xcept in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.”¿ (Cal. Rules of Court, Rule 3.1113(d).)¿ An oversized paper is considered the same as a late-filed paper.¿ (Id. at (g).)¿ However, a party may apply for leave to file a longer memorandum.¿ (Id. at (e).)¿ “A memorandum that exceeds 10 pages must include a table of contents and a table of authorities. A memorandum that exceeds 15 pages must also include an opening summary of argument.”¿ (Id. at (f).)¿ The Court may refuse to consider a late-filed paper.¿ (Cal. Rules of Court, Rule 3.1300(d).)¿ 

The Court notes that here Defendant has filed a 22-page memorandum.¿ No leave of the Court has been requested in filing an oversized opening memorandum.¿ The memorandum also does not include a table of contents and a table of authorities.  The Court will refuse to consider the oversized brief.   

CONCLUSION 

Based on the foregoing, the Court DENIES Plaintiff’s motion to set aside judgment and any default and to quash any writ of possession or execution.   

 

IT IS SO ORDERED. 

 

DATED: September 18, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court