Judge: Joel L. Lofton, Case: 22GDCV00061, Date: 2024-05-16 Tentative Ruling
Case Number: 22GDCV00061 Hearing Date: May 16, 2024 Dept: X
Tentative Ruling
Judge Joel L. Lofton,
Department X
HEARING DATE: May
16, 2024 TRIAL
DATE: No date set.
CASE: ZHIWEI CHEN v. VERIZON
WIRELESS SERVICES, LLC.
CASE NO.: 23AHCV01967
MOTION
MOVING PARTY: Plaintiff Zhiwei Chen
RESPONDING PARTY: Unopposed
SERVICE: Filed April 16, 2024
OPPOSITION: None filed as of May 14, 2024
REPLY: None filed as of May 14, 2024
RELIEF
REQUESTED
Plaintiff moves for an order vacating
the Court’s November 7, 2023 ruling which granted Defendant’s motion to compel
arbitration.
BACKGROUND
Plaintiff Zhiwei Chen (“Plaintiff”) alleges
that Defendant Verizon Wireless Services, LLC (“Defendant”) used a technical
means to take control of his phone and make him unable to use his phone. Plaintiff
alleges that Defendant forged Plaintiff’s signature with the intention of
taking possession of Plaintiff’s property.
On August 28, 2023, Plaintiff filed
a Complaint against Defendant alleging a cause of action for intentional tort,
as well as counts of: (1) conversion of chattels; and (2) intentional
infliction of mental anguish.
On October 12, 2023, Defendant filed
a Motion to Compel Arbitration and Stay Action. On October 30, 2023, Plaintiff
filed a Request to Dismiss Defendant’s Motion for Arbitration.
On November 7, 2023, after hearing
oral argument, the Court granted Defendant’s motion to compel arbitration and
stayed this action pursuant to Code of Civil Procedure section 1281.4.
(11/07/23 Minute Order.) Also, on November 7, 2023, Defendant served Plaintiff
with notice of the Court’s order as to the motion to compel arbitration.
On April 16, 2024, Plaintiff filed
the instant Motion to Vacate. Plaintiff moves to vacate the Court’s November 7,
2023 ruling. Plaintiff’s motion is brought pursuant to CCP § 657(4). As of May
14, 2024, no opposition has been filed.
TENTATIVE RULING
Plaintiff’s
motion to vacate is DENIED.
LEGAL STANDARD
“The verdict may be vacated and any other decision may be modified or
vacated, in whole or in part, and a new or further trial granted on all or part
of the issues, on the application of the party aggrieved” when there is
“[n]ewly discovered evidence, material for the party making the application,
which he could not, with reasonable diligence, have discovered and produced at
the trial.” (Code Civ. Proc. § 657(4).)
DISCUSSION
Overview
Plaintiff
moves to vacate this Court’s November 7, 2023 ruling which granted Defendant’s
motion to compel arbitration. Plaintiff contends that the evidence submitted by
Defendant in support of the motion to compel arbitration was all forged.
Application
Initially,
the Court notes that trial in this action has not occurred and, as such, the
Court finds that Plaintiff moving under CCP § 657(4) is improper. Even if the
instant motion were construed as a motion for new trial, Plaintiff’s motion
would be procedurally deficient as Plaintiff did not serve a notice of
intention to move for new trial with the Clerk or Defendant as required by CCP
§ 659. Plaintiff should not have filed a motion for new trial but, rather,
should have filed a motion for reconsideration.
Even
construing the instant motion as a motion for reconsideration of the Court’s
November 7, 2023 ruling, the Court finds that the instant motion is deficient
and cannot be granted.
California
Code of Civil Procedure, Section 1008(a) provides that “[w]hen 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 . . . [may] make 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.” (Code Civ. Proc., § 1008,
subd. (a).)
Here,
Plaintiff was served with the Court’s ruling as to Defendant’s motion to compel
arbitration on November 7, 2023; however, Plaintiff did not file the instant
motion until April 16, 2024. Thus, Plaintiff’s motion is untimely. Plaintiff
only had 10 days from service of the Court’s November 7, 2023 ruling to move
for reconsideration of such order.
In
support of the motion, Plaintiff declares that on January 6, 2024, he received an
email from Defendant asking him to join a class action lawsuit in another one
of his cases. (Chen Decl. at p. 2:7-9.) Plaintiff states that the e-mail
provided Plaintiff’s account number and he logged into his account—which was
different than the account number stated in Defendant’s motion to compel
arbitration—and he found new evidence in such account. (Chen Decl. at p.
2:9-14.) While Plaintiff purports to present new evidence to the Court,
Plaintiff’s declaration does not show reasonable diligence as Plaintiff has
failed to provide “a satisfactory explanation for the failure to produce that
evidence at an earlier time.” (Mink v.
Superior Court (1992) 2 Cal.App.4th 1338, 1342.) In the context of motions
for reconsideration, there is “a strict requirement of diligence.” (Garcia
v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) “In law and motion practice,
factual evidence is supplied to the court by way of declarations.” (Calcor
Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)
The
Court recognizes that Plaintiff is representing himself in pro per.
However, pro per litigants “are held to the same standard as attorneys.”
(Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
CONCLUSION
Plaintiff’s
Motion to Vacate is DENIED.
Dated: May 16, 2024 ___________________________________
Joel
L. Lofton
Judge
of the Superior Court