Judge Gary I. Micon, Case Number: PC058000, Date: 2024-10-30 Tentative Ruling

Judge: Gary I. Micon, Case: PC058000, Date: 2024-10-30 Tentative Ruling

Case Number: PC058000 Hearing Date: October 30, 2024 Dept: F43

Dept. F43

Date: 10-30-24

Case #PC058000, Mylene Farooq vs. Bank of America N.A., et al.

Trial Date: N/A

MOTION TO VACATE AN ERRONEOUS ORDER

MOVING PARTY: Plaintiffs Mylene Farooq and Ibrahim Farooq

RESPONDING PARTY: Defendant Breckenridge Property Fund 2016, LLC

RELIEF REQUESTED

Plaintiffs are requesting that the Court vacate its August 9, 2024, Order

RULING: Motion is denied.

SUMMARY OF ACTION

This case involves the mortgage foreclosure of Plaintiffs’ real property located at 18503 Olympian Court, Santa Clarita, California. On March 29, 2023, this Court (Judge Pfahler presiding) dismissed the action in its entirety with prejudice for failure to prosecute. Plaintiffs Mylene Farooq and Ibrahim Farooq have since appealed the case.

On July 8, 2024, the Court held a non-appearance case review and found that the appeal had been dismissed. The Court set a case management conference (CMC) for August 9, 2024. At the CMC on August 9, the Court again found that the appeal had been dismissed and continued the CMC to April 18, 2025. Later, after the hearing, the Court reviewed the case and found that the matter was dismissed with prejudice on March 29, 2023. The Court found that the August 9 hearing was set in error and vacated the April 18, 2025, case management conference.

On September 3, 2024, Plaintiffs filed a motion to vacate the August 9, 2024, order pursuant to CCP §§ 663, 473(d), and 128.7. Plaintiffs appear to challenge the finding in the August 9 order that their appeal had been dismissed, and they challenge the removal of the April 18, 2025, CMC from the calendar. Since August 9, Plaintiffs’ default on appeal has been vacated pending proof that Plaintiffs paid their appellate fees within 15 days of the date of that order, which was September 3. It appears that the appeal is currently active.

Defendant Breckenridge Property Fund 2016, LLC (Defendant) filed an opposition to Plaintiffs’ motion on October 16, 2024. Defendant argues that it was proper and within the Court’s discretion to remove the CMC from its calendar and that the order at issue has no bearing on the pending appeals. Defendant also argues that none of the three sections cited by Plaintiffs are sufficient grounds to set aside the order.

Defendant’s Request for Judicial Notice: Defendant has requested that the Court take judicial notice of two deeds recorded in the Official Records of Los Angeles County and three court orders from this case. The Court takes judicial notice of these documents.

ANALYSIS

First, Plaintiffs’ move to vacate the order pursuant to CCP § 663. That section provides the following:

A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment:

1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected.

2. A judgment or decree not consistent with or not supported by the special verdict.

(CCP § 663.)

Defendant argues that this section pertains to judgments. A motion to vacate a judgment under CCP § 663 may only be brought when the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist. (Payne v. Rader (2008) 167 Cal.App.4th 1569, 1575 [disapproved of on other grounds by Ryan v. Rosenfeld (2017) 3 Cal.5th 124].) A Section 663 motion “is designed to enable speedy rectification of a judgment rendered upon erroneous application of the law to facts which have been found by the court or jury or which are otherwise uncontroverted.” (Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203.)

Plaintiffs have not challenged a judgment. Instead, they have just challenged a normal order. CCP § 663 would not be applicable to this situation. Plaintiffs are not entitled to any relief under CCP § 663. Even if they were entitled to such relief, Defendant also argues that Plaintiffs’ motion would have been untimely filed, as such motion must be made within 15 days of the date of mailing of entry of judgment by the clerk of the court, or within 180 days after entry of judgment, whichever is earliest. (CCP § 663a(a)(2).) The August 9 order was mailed to Plaintiffs on August 9, and this motion was filed on September 3, which was 25 days after the service of the order. That means the motion was untimely pursuant to CCP § 663.

Next, Plaintiffs have moved to vacate the order pursuant to CCP § 473(d). That section provides the following:

The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.

(CCP § 473(d).)

Defendant argues that the order may not be set aside under CCP § 473(d). “[I]nclusion of the word ‘may’ in the language of section 473, subdivision (d) makes it clear that a trial court retains discretion to grant or deny a motion to set aside a void judgment [or order].” (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) “However, the trial court ‘has no statutory power under section 473, subdivision (d) to set aside a judgment [or order] that is not void....’” (Pittman v. Beck Apartments Ltd. (2018) 20 Cal.App.5th 1009, 1020.) “A judgment is ‘void’ only when the court entering that judgment ‘lack[ed] jurisdiction in a fundamental sense’ due to the ‘entire absence of power to hear or determine the case’ resulting from the ‘absence of authority over the subject matter or the parties.’” (People v. North River Ins. Co. (2020) 48 Cal.App.5th 226, 233.) “In general, a court has discretion in the control and regulation of its calendar and may, for good cause, strike a case from the calendar. (Maximum Tech. v. Sup Ct. (1987) 188 Cal.App.3d 935, 937.)

There was nothing void about the Court’s August 9 order. The Court may take a hearing from a previously dismissed case off the calendar. The Court also has discretion to manage its own calendar. Furthermore, with the appeal active again, that means that the case is stayed at the trial court level. Taking a CMC of a stayed case off calendar is entirely within the Court’s power. The Court will not vacate the August 9 order based on CCP §473(d).

Finally, Plaintiffs move to vacate the order based on CCP § 128.7 That section involves the alleged misstatement of an attorney being grounds to set aside an order. When a party or attorney “present[s] to the court” any pleading or paper, it thereby certifies, among other things, that (1) “[t]he claims ... and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law” and (2) “[t]he allegations and other factual contentions have evidentiary support.” (CCP § 128.7(b)(2)-(3).) A pleading or paper that does not have the requisite legal warrant is said to be “legally frivolous;” one that makes allegations without evidentiary support is said to be “factually frivolous.” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 440.)

Defendant argues that the August 9 order may not be aside under CCP § 128.7. Plaintiffs contend that an attorney for another party orally misrepresented to the Court the status of Plaintiffs’ appeals at the August 9 CMC. Even if this is presumed as true, though it is likely not true considering that Plaintiffs appeared to be in default on their appeal at the time, this position was not taken by Defendant or advocated in any pleading filed in the Court. CCP § 128.7 is not an appropriate basis for vacating the August 9 order.

Based on the foregoing, the sections cited by Plaintiffs are inapplicable or insufficient grounds to vacate the August 9. Accordingly, Plaintiffs’ motion to vacate that order is denied.

CONCLUSION

Plaintiffs’ motion to vacate the August 9 order is denied.

Moving party to give notice.