Judge: Helen Zukin, Case: 21SMUD00730, Date: 2023-07-11 Tentative Ruling

Case Number: 21SMUD00730    Hearing Date: July 11, 2023    Dept: 207

Background

            On November 29, 2021, Plaintiff Montgomery Management Co, a California Corporation (Plaintiff) filed the instant action against Defendant Ralph Brescia (Defendant) for unlawful detainer. After Defendant vacated the premises, Plaintiff filed its First Amended Complaint (FAC) asserting a claim for breach of lease and seeking back rent and holdover damages.

            The Court held trial on April 28, 2023. Counsel for Defendant submitted a declaration to the Court at the start of trial requesting a continuance of the trial. The Court denied Defendant’s oral motion for a continuance due to lack of diligence, lack of good cause, and prejudice to the Plaintiff. Notably, Defendant had previously received several continuances of the trial. Defendant appeared remotely via LACourtConnect, audio only. The Court entered judgment for Plaintiff against Defendant in the amount of $76,396.78.

            On May 15, 2023, the Court entered a final judgment for Plaintiff. On May 16, 2023, Plaintiff served Defendant with the Notice of Judgment. Defendant contends he electronically filed and served his Notice of Intention to Move for New Trial on May 31, 2023, and that it was rejected by the Court. The Court docket does not contain any such filing or rejection notice. As reflected in the court docket, on June 5, 2023, Defendant filed and served his Notice of Intention to Move for New Trial.

            On June 22, 2023, Defendant filed an Ex Parte Application for Order Accepting As Timely Filed Defendant’s Notice of Intention to Move for New Trial. The Court denied Defendant’s ex parte application because Defendant’s factual showing was insufficient under CRC 3.1202.

            Defendant brings the instant motion for new trial.  Plaintiff opposes the motion. 

Legal Standard

“A motion for new trial is a creature of statute . . . .” (Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1198.) Pursuant to Code of Civil Procedure section 657, a motion for new trial may be granted if there is any:

1. Irregularity in the proceedings of the court, jury, or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

A party may file an intent to move for a new trial either: (1) after a decision is rendered and before the entry of judgment or (2) within fifteen days of the date of mailing notice of entry of judgment by the court clerk, or service by a party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earlier.  (Code Civ. Proc., § 659, subd. (a).)  The above time limits are jurisdictional and cannot be extended by stipulation or court order.  (CCP §¿659(b); Marriage of Herr (2009) 174 Cal.App.4th 1463, 1469.)

Evidentiary Objections

      The Court overrules Plaintiff’s objections to the Declaration of Defendant.

Analysis

            Plaintiff argues that Defendant filed his Notice of Intention to Move for New Trial five days past the deadline to move for a new trial under Code of Civil Procedure section 659, and thus his Motion for New Trial should be rejected. The Court agrees. Judgment was entered on May 15, 2023. On May 16, 2023, Plaintiff served a Notice of Entry of Judgment on Defendant via mail. Thus, pursuant to CCP §¿659(b), Defendant had until May 31, 2023, to file and serve his Notice of Intention to Move for New Trial. Defendant did not, however, file his Notice of Intention to Move for New Trial with the Court until June 5, 2023. Defendant fails to address this procedural defect. Accordingly, Defendant’s motion for new trial is untimely and the Court does not have jurisdiction to grant the motion.  (In re Marriage of Beilock (1978) 81 Cal.App.3d 713, 721 [“It is well settled that a timely filing of the notice of intention to move for a new trial is jurisdictional, and the time cannot be extended or waived by the parties.”].)  Therefore, the motion is denied as a procedural matter, and the Court declines to consider the substantive arguments asserted in the motion.

Conclusion

Defendant’s Motion for New Trial is DENIED.