Judge: Latrice A. G. Byrdsong, Case: 18STCP10154, Date: 2023-11-01 Tentative Ruling

*** Please Note that the Judicial Officer Presiding in Department 25 is Commissioner Latrice A. G. Byrdsong ***
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Case Number: 18STCP10154    Hearing Date: November 1, 2023    Dept: 25

Hearing Date:                         Wednesday, November 1, 2023

Case Name:                             Young Chow Dai v. Feldman & Rothstein, P.C., et al.

Case No.:                                18STCV10154

Motion:                                   Motion To Vacate Judgment and Enter a New and Different Judgment

Moving Party:                         Plaintiff Young Chow Dai

Responding Party:                   None.

Notice:                                    OK

Tentative Ruling:           Plaintiff’s Motion To Vacate Judgment and Enter a New and Different Judgment is DENIED.

BACKGROUND

On December 31, 2018, Plaintiff Young Chow Dai (“Plaintiff”), in propria persona, filed an action against Defendants Feldman & Rothstein, P.C. (“Feldman”), Mauro Fiore, Jr. (“Fiore”), Krystal L. Rosal (“Rosal”), Anthony N. Ranieri, Esq.[1] (“Ranieri”), and Marsha S. Mao (“Mao”) for breach of contract. Plaintiff filed a First Amended Complaint (“FAC”) on the same day.

Defendant Mao filed Demurrers on March 15 and July 10, 2019. On April 29, 2019, Defendants Rosal and Fiore, each filed a separate General Denial. Defendant Ranieri filed an Answer on May 24, 2019.

On July 23, 2019, Defendant Mao filed a Notice of Related Case, Young Chow Dai v. Paul P. Cheng & Associates, et al., Case No. 18STCV10177.

On September 24, 2019, the instant case was reclassified as a limited civil jurisdiction case. (9- 24-19 Notice of Reclassification.) The case was assigned to Department 94 and all matters on the calendar were vacated. (9-24-19 Notice of Reassignment.)

On December 26, 2019, Plaintiff filed a Motion to Reclassify Case as Civil Unlimited. On July 2, 2020, the Court found that the motion, in effect, was a motion for reconsideration and denied it due to deficiencies. (7-2-20 Minute Order.)

Plaintiff filed another Motion to Reclassify on July 8, 2020, as well as a Motion for Reconsideration on July 10, 2020, with supplemental papers filed on January 21 and 22, 2021. On February 22, 2021, the Court denied the Motion for Reconsideration due to several issues with the Motion. (2-22-21 Minute Order.) On August 9, 2021, the Court also denied the Motion to Reclassify as moot, filed on July 8, 2020, as it was nearly identical to the Motion for Reconsideration, denied on February 22, 2021, and contained the same deficiencies. (8-9-21 Minute Order.)

On May 4, 2022, the Appellate Division of the Superior Court dismissed Plaintiff’s appeal of the Court’s February 22, 2021, Order denying her Motion for Reconsideration. (5-4-22 Minute Order – Case No. BV033464; 7-7-22 Appeal – Remittitur.)

On August 25, 2022, Plaintiff filed a Motion for Summary Judgment. On August 30, 2022, Plaintiff filed another Motion for Summary Judgment and a Second Motion for Summary Judgment and New Discovery of Defendants’ Non-excusable Neglect. On September 19, 2022, the Court denied Plaintiff’s Motion for Summary Judgment, noting that it contained numerous procedural and substantive deficiencies. (9-19-22 Minute Order.)

On August 26, 2022, Plaintiff filed a Motion for Leave to Amend Complaint.

On October 18, 2022, Plaintiff filed a motion titled “Amended Motion for Order Show Cause why should not Dismiss Pursuant to CCP 128.7 & CCP 575.2 and Government Code 68608.” A related, Second Amended Motion, was filed on October 31, 2022.

On November 22, 2022, the Court made the following order:

Based on Plaintiff's failure to comply with California Rules of Court, Rule 3.1113 in connection with motions filed, failure to prepare for trial, filing multiple and duplicative motions for reconsideration and summary judgment, as well as filing a stipulation with the Court in which Plaintiff fraudulently typed in the signatures of opposing counsel and the Court, the Court finds that Plaintiff has violated CCP Section 128.7 by filing pleadings for an improper purpose, causing unnecessary delay and increasing the cost of litigation. The Court finds that dismissal of the action with prejudice is the only appropriate sanction. Defendants to submit a proposed order to the Court. Counsel for defendant is to give notice.

(11-22-22 Minute Order.) The Court signed the Order dismissing the action with prejudice on November 28, 2022. (11-28-22 Order.)

On December 1, 2022, Plaintiff filed a Motion for New Trial. An Amended Motion for New Trial was filed on December 29, 2022.

On April 12, 2023, Plaintiff filed a Motion to Transfer to Santa Monica Courthouse Emergency Medical Concern Motion to Request Court Transfer and Notice of Motion to Change.

On July 10, 2023, the Court denied Plaintiff’s motion for new trial.

On August 14, 2023, Plaintiff filed the instant motion to vacate judgment. To date, no opposition has been filed.

MOVING PARTY POSITION

Plaintiff requests an order setting aside and vacating the judgment rendered on July 10, 2023, and for the Court to enter a new and different judgment. Plaintiff makes this motion under Code of Civil Procedure section 663.

Plaintiff states that he is a senior citizen who has a disability and has been denied multiple times for an ADA request. Plaintiff also states that he would like to file a complaint for racist discrimination and bullying against a senior citizen with disabilities. He asserts that he had difficulties with the court translator and court clerks.

OPPOSITION

None.

REPLY

None.

ANALYSIS

I.          Motion To Vacate Judgment

A.                Legal Standard

A motion to vacate lies only where a “different judgment” is compelled by the facts found. (Code Civ. Proc., § 663.) A motion to vacate under section 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.” (County of Alameda v. Carleson (1971) 5 Cal.3d 730, 738.) “ ‘A motion to vacate under [Code of Civil Procedure] section 663 is a remedy to be used when a trial court draws incorrect conclusions of law or renders an erroneous judgment on the basis of uncontroverted evidence.’ ” (Plaza Hollister Ltd. Partnership v. County of San Benito (1999) 72 Cal.App.4th 1, 14, quoting Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153, 154.) 

B.                 Analysis

This is a disguised motion for reconsideration, not a proper motion for relief under Section 663.  

Code of Civil Procedure section 663 is not applicable to vacate/set aside a judgment following a motion to request court transfer, motion to change venue, and/or motion for new trial. In the July 10, 2023 order that Plaintiff requests to vacate/set aside, Plaintiff moved to transfer, change venue, and for a new trial.

The Court notes that the action was dismissed with prejudice on November 22, 2022. (11-22-22 Minute Order.) In the July 10, 2023 order, the Court held that it lacked jurisdiction over the instant action and could not transfer the matter as it had already been dismissed. The Court also considered the merits of Plaintiff’s request for a new trial and found that there were insufficient grounds to grant this request. The Court explained as follows:

First, Plaintiff has not shown that there was any irregularity in the proceedings or any order or an abuse of discretion that prevented her from having a fair trial. Second, the case was dismissed, and damages were not granted. Third, Plaintiff has failed to show that the Court’s decision to dismiss the case was based on insufficient evidence. Fourth, Plaintiff has not shown that the Court made an error in law.

(7-10-23 Minute Order.) Similarly here, Plaintiff fails to point out any “conclusions of law” to be corrected from “uncontroverted evidence.” Section 663 only “empowers a trial court, on motion of ‘[a] party ... entitl[ed] ... to a different judgment’ from that which has been entered, to vacate its judgment and enter ‘another and different judgment.’ ” (Forman v. Knapp Press (1985) 173 Cal.App.3d 200, 203.) As the Court in Forman notes, 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, at p. 203) 

For the reasons stated above this motion cannot be made under Section 663. And the relief it seeks is not the alteration of a judgment, but the modification of this court’s prior order. Therefore, this is in fact a motion for reconsideration, to which the provisions of CCP § 1008 apply. Plaintiff has made no attempt to show compliance with that section, nor sufficiently stated grounds for his motion. Therefore, the motion is DENIED. 

III.       Conclusion

Defendant’s Motion to Vacate the July 10, 2023 judgment and enter a new and different judgment is DENIED.

Moving Party to give notice.