Judge Lee W. Tsao, Case Number: 23NWCV04131, Date: 2024-06-12 Tentative Ruling

Judge: Lee W. Tsao, Case: 23NWCV04131, Date: 2024-06-12 Tentative Ruling

Case Number: 23NWCV04131 Hearing Date: June 12, 2024 Dept: C

CHRISTOPER LEE MAGDOSKU, ADMINISTRATOR FOR THE ESTATE OF IRENE CATHERINA MAGDOS, ET AL. v. VICTORIA TEJEDA

CASE NO.: 23NWCV04131

HEARING: 6/12/24 @ 9:30 A.M.

TENTATIVE RULING

Defendant Victoria Tejeda’s Motion to Vacate Judgment is DENIED.

Clerk to give NOTICE.

The motion is unopposed as of June 10, 2024.

Background

This is a case for forcible entry and forcible detainer.

On January 2, 2024, the Defendant answered the complaint.

On February 27, 2024, the Court tried the case and entered judgment in favor of Plaintiff the same day.

On May 15, 2024, Defendant moved to vacate the judgment.

Timing

The time to file a motion to vacate a judgment is jurisdictional and cannot be extended due to mistake, inadvertence, surprise, or excusable neglect. (Conservatorship of Townsend (2014) 231 Cal.App.4th 691.)

The moving party must file and serve the notice of motion either: (1) “After the decision is rendered and before the entry of judgment”; or (2) “Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court … 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.” (Code Civ. Proc., § 663a, subd. (a)(1), (2).) The clerk’s notice of entry of judgment must affirmatively state it was given upon order by the court or under section 664.5. (Simgel Co., Inc. v. Jaguar Land Rover North America, LLC (2020) 55 Cal.App.5th 305, 314-315.)

On February 27, 2024, the court clerk mailed the notice of entry of judgment. It did not affirmatively state it was given “upon order by the court,” or “under section 664.5.” The form served by the clerk is a Los Angeles Superior Court multi-purpose form used for notice of entry of judgment or dismissal or other order. In the lower right-hand corner, in tiny font, there are references to section 664.5, section 1013a (on proof of service by mail), and two court rules (Cal. Rules of Court, rule 8.104 on the time to appeal and another rule that has been repealed). However, the citation to section 664.5 may reflect instances where notice of entry of judgment by the clerk is mandatory. Because the notice does not affirmatively state it was given “upon order of the court,” or “under section 664.5,” or anything similar, and because the record nowhere reflects that the court ordered the clerk to serve notice of entry of judgment, the Court cannot assume the court did so.

Thus, the 180-day rule applies. One hundred and eighty days after entry of judgment is August 25, 2024. Hence, Defendant is timely.

Vacate Judgment

Section 663 provides two grounds for vacating a 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.

Defendant argues that Plaintiff has labeled her residence as vacant prior to initiating legal proceedings against her. Defendant submits as evidence documents and correspondence from the United States Postal Service. But Defendant cannot introduce new evidence post-trial. She can only argue an incorrect or erroneous legal basis for the decision.

Because this was a bench trial, there was no special verdict.

Thus, the Court DENIES the motion.