Judge: John J. Kralik, Case: 19BBCV00929, Date: 2023-02-24 Tentative Ruling

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Case Number: 19BBCV00929    Hearing Date: February 24, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

1.      Allegations

Plaintiff Woodhill Ventures, LLC dba Big Sugar Bakeshop (“Plaintiff”) is a small business bakery.  Plaintiff alleged that Defendant Ben “Ben Baller” Yang (“Defendant”) made numerous profane, libelous, and slanderous comments on social media and his podcast accusing Plaintiff of putting Drugs/RX prescription pills on his son’s birthday cake.  

The operative complaint, filed October 17, 2019, alleged causes of action for: (1) libel; (2) slander; and (3) unfair business practices.

2.      Relevant Background

On February 7, 2020, the Court denied Defendant Ben Yang’s special motion to strike the complaint pursuant to CCP §425.16.  Defendant appealed.  On September 3, 2021, the Court of Appeal affirmed and awarded costs to Respondent/Plaintiff.  On January 7, 2022, the Court of Appeal issued its Remittitur.     

The case then proceeded to a jury trial.  On November 4, 2022, the jury returned the special verdict forms.

On January 3, 2023, Judgment was entered on the special verdict forms.  The Court entered judgment in favor of Plaintiff, Plaintiff was entitled to recover $1,407,000 from Defendant with interest at 10% per annum from the date of judgment until paid, Plaintiff was to take nothing on the 3^rd cause of action, and Plaintiff was deemed the prevailing party in the action and entitled to recover costs against Defendant.  

3.      Motion on Calendar

On January 18, 2023, Defendant filed a Notice of Intention to Move for New Trial. Defendant moves pursuant to CCP § 657(1), (5), (6), and (7). 

On January 24, 2023, the Clerk of the Court issued a Notice of Hearing of Motion for New Trial, setting the hearing date for February 24, 2023.

Prior to this hearing date, Defendant has not filed a motion or accompanying memorandum of points and authorities.

Plaintiff filed an opposition to the motion.

LEGAL STANDARD

CCP § 659 states:

(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.

(CCP § 659.)

CCP § 657 states in relevant part.

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, for any of the following causes, materially affecting the substantial rights of such party:

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.

…

(CCP § 657.)

DISCUSSION

            Defendant filed a notice of intention to move for new trial, but has not filed a motion with an accompanying memorandum of points and authorities or evidence. 

            CRC Rule 3.1600 states:

(a) Time for service of memorandum

Within 10 days after filing notice of intention to move for a new trial in a civil case, the moving party must serve and file a memorandum in support of the motion, and within 10 days thereafter any adverse party may serve and file a memorandum in reply.

(b) Effect of failure to serve memorandum

If the moving party fails to serve and file a memorandum within the time prescribed in (a), the court may deny the motion for a new trial without a hearing on the merits.

(CRC Rule 3.1600.) 

Here, Defendant did not file a memorandum of points and authorities within 10 days of filing the notice of intention to move for a new trial.  Defendant filed the notice of intention to move for new trial on January 18, 2023, such that he was required to file and serve a memorandum of points and authorities within 10 days.  The Court’s review of the documents filed in this action show that Defendant has not filed a memorandum of points and authorities in support of a motion for new trial. 

Thus, pursuant to CRC Rule 3.1600, Defendant’s failure to timely file and serve a memorandum of points and authorities is grounds to deny the motion for new trial without a hearing on the merits. 

Accordingly, the motion for new trial is denied.

CONCLUSION AND ORDER

            Defendant Ben Yang’s motion for new trial is denied. 

            Defendant shall provide notice of this order.