Judge: Malcolm Mackey, Case: 21STCV39406, Date: 2023-08-17 Tentative Ruling
Case Number: 21STCV39406 Hearing Date: August 17, 2023 Dept: 55
CARRADINE
v. DEWITTE 21STCV39406
Hearing Date: 8/17/23,
Dept. 55
#5: MOTION FOR RECONSIDERATION….
Notice: Okay
No
Opposition
MP:
Plaintiff
RP:
Summary
On 10/26/21, Plaintiff SANDRA WILL CARRADINE, a
self-represented litigant, filed a Complaint.
On 3/10/22, Plaintiff filed a First Amended Complaint,
alleging: For years, defendants have
been trying to remove Plaintiff from her leased premises, including by
fraud. Plaintiff successfully obtained
summary judgment in an unlawful detainer action, based upon having a lease with
an option to purchase, at 2115 N. Upper Krest St., Los Angeles, CA 90046. Defendant DEWITTE MORTGAGE INVESTORS FUND, LLC
(DMIF) had foreclosed on a second deed of trust. Also, Defendant PETER DEWITTE recorded
an assignment of a deed of trust to himself, and seeks to foreclose on the
extinguished first deed of trust, using CLE CAPITAL PARTNERS LLC (CLE) as a
strawman.
The causes of action are:
1. FRAUD.
2. VIOLATION
OF ANTI-HARASSMENT ORDINANCE.
3. BREACH
OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING.
4. TORTIOUS
INTERFERENCE WITH CONTRACT.
On 3/3/22, defendants DE WITTE MORTGAGE INVESTORS FUND
LLC and PETER DE WITTE filed a Cross-Complaint against Plaintiff and others,
alleging that cross-defendants made publications including a lis pendens
against the property, which casts doubts on the propriety of
cross-complainants’ claims to title in the Property.
Cross-complainants’ Causes of Action are:
1. SLANDER OF TITLE;
2. INTENTIONAL
INTERFERENCE WITH ECONOMIC RELATIONS;
3. NEGLIGENT INTERFERENCE
WITH ECONOMIC RELATIONS;
4. DECLARATORY RELIEF;
5. EJECTMENT;
6. FRAUDULENT INTENTIONAL
MISREPRESENTATION; AND
7. NEGLIGENT
MISREPRESENTATION.
MP
Positions
Moving party requests an order reconsidering three
points of the ruling on Plaintiff’s motion for judgment on the pleadings in the
tentative ruling on 4/17/23 (entered in the minutes of 4/18/23), on grounds
including the following:
·
Trial testimony
from the case BC708606 was not inadmissible under the hearsay rule, given
applicable exceptions, including a statement against interest, and personal
knowledge.
·
Collateral
estoppel applies, because opposing parties waived the issue of lease validity,
by failure to raise it on appeal, as held by the ruling in the Court of Appeal
on 5/24/23 in appellate case number B317957.
Tentative
Ruling
The motion is granted, only as unopposed.
The failure to file a proper and timely opposition in
trial court creates a waiver of the issues on any appeal. Bell v. Am. Title Ins. Co. (1991) 226
Cal. App. 3d 1589, 1602; Cabrini
Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693. A judge in a civil case is not
"'obligated to seek out theories [a party] might have advanced, or to
articulate … that which … [a party] has left unspoken.'" Mesecher v.
Because of the nonopposition, the Court need not
address the following merits:
Disagreement with a ruling is not a new fact that will
support the granting of a motion for reconsideration. Gilberd v.
AC Transit (1995) 32 Cal.App.4th 1494, 1500. Issues of argued judicial error do not
support motions for reconsideration, but instead the prescribed remedy is to
seek relief on appeal. Lavrischeff v. Blumer (1978) 77 Cal. App. 3d 406,
411.
“Presentation of extrinsic evidence is … not proper on
a motion for judgment on the pleadings.”
Cloud v. Northrop Grumman Corp. (1998) 67 Cal. App. 4th 995, 999.
Failure to raise an issue in the trial court and on
appeal is a possible waiver for purposes of the appeal, not to be confused with
an issue raised in a different case in a trial court. See generally, e.g. Greenwich S.F., LLC v. Wong (2010) 190
Cal. App. 4th 739, 767 (“Appellant has
waived any such claim by failing to raise it in the trial court below….
Appellant argues that the issue is one pertaining only to a question of law on
undisputed facts that may be raised for the first time on appeal…. Moreover,
the issue is one within our discretion, and we are not required to consider
this new theory, even if it raised a pure question of law.”).