Judge Mark E. Windham, Case 20STLC00332 2022-09-21 Tentative Ruling

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Cross-Complainants Trusted Hands Home Health and Armine Yengibaryan’s Renewed Motion to Vacate Ruling on Demurrer is DENIED.

SUMMARY OF COMPLAINT: Complaint for breach of lease, common counts and breach of guaranty of lease. Cross-Complaint for breach of contract and declaratory relief.

MOTION: Cross-Complainants renew their motion to set aside the ruling sustaining the Demurrer to the First Amended Cross-Complaint. New evidence is now available regarding the ruling in the Unlawful Detainer Action, which shows that the issue of overpayment of rent was not litigated at that time and was properly alleged in the First Amended Cross-Complaint.

OPPOSITION: This is Cross-Complainant’s tenth attempt to litigate the issue of overpayment of rent over two actions. A renewed motion must be brought within ten days’ notice of the challenged ruling. The instant Motion was untimely brought more than 15 months after the First Amended Cross-Complaint was dismissed. To the extent the Motion is again brought under Code of Civil Procedure section 473, it is also untimely. Substantively, a dismissal on the merits cannot be vacated under the Court’s equitable powers. In any event, Cross-Complainants only point to intrinsic fraud, which is not a basis to vacate the dismissal in equity.

On January 13, 2020, Ilka K. Avramov, as Trustee of the Ilka K. Avramov & Bogidar V. Avramov Revocable Family Trust filed the instant action against Trusted Hands Home Health Inc. and Armine Yengibaryan. On April 2, 2020, Trusted Hands Home Health Inc. and Armine Yengibaryan (hereinafter “Cross-Complainants”) filed a Cross-Complaint against Avramov, VII Commercial Corporation and Todd Nathanson (hereinafter “Cross-Defendants”).

On August 27, 2020, the Court sustained Cross-Defendants’ demurrer to the Cross-Complaint with leave to amend the breach of contract cause of action, and without leave to amend the declaratory relief cause of action. (Minute Order, 08/27/20.) Cross-Complainants filed the First Amended Cross-Complaint on September 21, 2020. On May 5, 2021, the Court sustained Cross-Defendants’ Demurrer to the First Amended Cross-Complaint without leave to amend. (Minute Order, 05/05/21.) Cross-Complainants did not appear at the hearing. (Ibid.)

On June 10, 2021, the Court denied Cross-Complainants’ ex parte application to vacate the ruling on the Demurrer to the First Amended Complaint. (Minute Order, 06/10/21.) At the initial trial date on July 12, 2021, the Court continued the trial to September 1, 2021. Cross-Complainants filed substitutions of attorney on August 3, 2021, indicating they would be self-represented. The Court notes that the substitution of attorney for Cross-Complainant Trusted Hands Home Health, Inc., indicating it would be self-represented, was filed by former attorney Raffy Boulgourjian, Esq. despite the fact that a corporate entity cannot be self-represented in a court of law.

At the September 1, 2021 trial date, the Court found Cross-Defendants had dismissed the Complaint and the Court took the trial off calendar. (Minute Order, 09/01/21.) On September 20, 2021, despite no longer representing Cross-Complainants, their former attorney Raffy Boulgourjian, Esq. filed a Notice of Settlement Re Motion for Attorney’s Fees. On March 11, 2022, Cross-Complainants filed a Motion to Vacate Ruling on Demurrer. That Motion to Vacate was denied on April 27, 2022. (Minute Order, 04/27/22.) Cross-Complainants then filed an ex parte application for reconsideration of the April 27, 2022 ruling. On May 9, 2022, the Court denied Cross-Complainants’ Ex Parte Application to Reconsider the Order Denying the Motion to Set Aside the Order Sustaining the Demurrer. (Minute Order, 05/09/22.)

Cross-Complainants filed the instant Renewed Motion to Vacate Ruling on Demurrer on May 23, 2022. Cross-Defendants filed an opposition on August 16, 2022 and Cross-Complainants filed a reply on August 22, 2022.

This Renewed Motion is brought pursuant to Code of Civil Procedure section 1008, subdivision (b). When a party seeks the same relief that was previously denied, it must bring a renewed motion pursuant to Code of Civil Procedure section 1008, subdivision (b). (California Correctional Peace Officers Ass’n v. Virga (2010) 181 Cal.App.4th 30, 43, fn. 11; see also Tate v. Wilburn (2010) 184 Cal.App.4th 150, 156-157.) When a motion has been denied in whole or in part, the moving party may apply again for the same relief at a later time only upon “new or different facts, circumstances or law.” (Code Civ. Proc., § 1008, subd. (b); see Graham v. Hansen (1982) 128 Cal.App.3d 965, 969-970.)

There is no time limit under section 1008 to renew a previous motion. (See Code Civ. Proc., § 1008, subds. (b), (e); Stephen v. Enterprise Rent-A-Car of San Francisco (1991) 235 Cal.App.3d 806, 816.) However, a renewed motion must be supported by a declaration showing the previous order, by which judge it was made, and what new or different facts, circumstances or law are claimed to exist. (Code Civ. Proc., § 1008, subd. (b).)

Contrary to Cross-Defendants’ opposition, there is no 10-day limitation to bring a renewed motion. The 10-day deadline pertains to motions for reconsideration brought pursuant to Code of Civil Procedure section 1008, subdivision (a). Therefore, the Renewed Motion is timely.

On May 5, 2021, the Court sustained Cross-Defendants’ Demurrer to the First Amended Cross-Complaint without leave to amend. (See Minute Order, 05/05/21.) The Court ruled that the claims in the First Amended Cross-Complaint were barred by the judgment in the earlier Unlawful Detainer Action between the parties. (Id. at pp. 3-4.) On April 27, 2022, the Court denied Cross-Complainants’ Motion to Vacate Ruling on Demurrer, which was brought pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), Code of Civil Procedure section 128, Code of Civil Procedure section 86, subdivision (b) and the Court’s equitable powers. (Minute Order, 04/27/22.) The ruling was made after consideration of all the papers filed and the parties’ oral argument. (Ibid.)

The instant Renewed Motion is not supported by new or different facts, as Cross-Complainants contend. Cross-Complainants bring the Renewed Motion based on the transcript of the Unlawful Detainer action, which they explain was not available at the time the Motion to Vacate Ruling on Demurrer was filed. (Renewed Motion, Shirinyan Decl., ¶¶12-15.) Specifically, the Motion to Vacate Ruling on Demurrer was filed on April 4, 2022. The transcript of the Unlawful Detainer proceeding was requested in January 2022 but not obtained by Cross-Complainants’ counsel until April 25, 2022. (Id. at ¶¶10-15 and Exhs. A-B.) When presented to the Court at the hearing on April 27, 2022, Cross-Complainants contend that the Court “adopted its tentative order without reviewing the new facts and different laws brought up to court’s attention by oral arguments.” (Id. at ¶¶18-19.) This demonstrates that the purportedly “new or different facts” were available at the time of the hearing on the original Motion to Vacate. These facts were presented to the Court at the hearing, which exercised its discretion and ruled accordingly. Therefore, Cross-Complainants have not shown that this Renewed Motion to Vacate is based on new or different facts.

Second, Cross-Complainants have not shown “diligence with a satisfactory explanation for not presenting the new or different information earlier,” which is also required for relief under the statute. (California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 45-46.) Cross-Complainants had requested the recording of the Unlawful Detainer proceeding in January 2022 and were aware at the time the Motion to Vacate Ruling on Demurrer was filed on April 4, 2022 that the recording still had not been located. (Motion, Shirinyan Decl., ¶¶10-12 and Exhs. A-B.) The Renewed Motion does not explain why Cross-Complainants’ (or their attorney’s) filed the Motion to Vacate Ruling on Demurrer without the recording. The recording of the Unlawful Detainer proceeding could have been presented to the Court with the original Motion to Vacate had Cross-Complainants waited to file the original Motion after obtaining the recording.

Cross-Complainants’ counsel further erred by failing to give proper notice of the ex parte application to continue the hearing on the original Motion to Vacate, which was filed and rejected on those grounds, on April 22, 2022. (Id. at ¶16; Notice of Rejection, 04/22/22.) To the extent Cross-Complainants base their Renewed Motion on the recording, it makes no sense that they brought the original Motion to Vacate Ruling on Demurrer before having the recording in their possession.

Finally, even if the Court were to consider the transcript of the Unlawful Detainer proceeding, it does not demonstrate a basis to reconsider the ruling on the Motion to Vacate the ruling on the Demurrer to the First Amended Complaint. As the Court previously noted, the Motion to Vacate Ruling on Demurrer was brought pursuant to Code of Civil Procedure section 473, subdivisions (b) and (d), Code of Civil Procedure section 128, Code of Civil Procedure section 86, subdivision (b) and the Court’s equitable powers. The request to vacate the ruling under Code of Civil Procedure section 473, subdivision (b) was untimely. (Minute Order, 04/27/22, pp. 2-3.) The request to vacate the ruling under Code of Civil Procedure section 473, subdivision (d) did not show that the ruling on the Demurrer was void. (Id. at p. 3.) The statutory grounds under Code of Civil Procedure section 128, subdivision (a)(8) and under section 86, subdivision (a)(8), were also found to be inapplicable. None of these statutory grounds to vacate the ruling on the Demurrer pertained to what occurred in the Unlawful Detainer proceeding.

Cross-Complainants now base their Renewed Motion on the Court’s equitable authority to provide relief from extrinsic fraud. (Motion, p. 6:22-9:15.) Despite repeatedly providing authority on what constitutes extrinsic fraud—which exists when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits—Cross-Complainants have not shown that any extrinsic fraud in this action or in the Unlawful Detainer action resulted in the Court’s ruling sustaining the Demurrer to the First Amended Cross-Complaint.

Fraud is extrinsic when a party is prevented from fully participating in the proceeding or deprived of the opportunity to present a claim to the court by the fraudulent conduct of another party, as opposed to the moving party's own negligence. (Stevenot, supra, 154 Cal.App.3d at p.1068, 202 Cal.Rptr. 116; City and County of San Francisco v. Cartagena (1995) 35 Cal.App.4th 1061, 1067, 41 Cal.Rptr.2d 797 (Cartagena).) “The clearest examples of extrinsic fraud are cases in which the aggrieved party is kept in ignorance of the proceeding or is in some other way induced not to appear. [Citation.]” (Sanders, supra, 40 Cal.3d at pp. 614–615, 221 Cal.Rptr. 432, 710 P.2d 232.) Other examples include “concealment of the existence of a community property asset, failure to give notice of the action to the other party, and convincing the other party not to obtain counsel because the matter will not proceed (and then it does proceed). ([Stevenot, supra, 154 Cal.App.3d at p. 1069 [202 Cal.Rptr. 116]].)” (Cartagena, supra, 35 Cal.App.4th at p. 1067, 41 Cal.Rptr.2d 797.)

(Hudson v. Foster (2021) 68 Cal.App.5th 640, 664.) Cross-Complainants repeatedly argue that Cross-Defendants made false statements regarding what occurred in the Unlawful Detainer proceeding. (Motion, p. 6:13-22.) This does not show that Cross-Complainants were deprived of an opportunity to fully participate in any of the hearings. In fact, Cross-Complainants have fully participated in all stages of both cases. Extrinsic fraud cannot be claimed because the Court did not adopt their argument, regardless of any purported false statements by Cross-Defendants. Cross-Complainants have had every opportunity to counter those purported false statements with their own allegations, arguments, and evidence. Nor can Cross-Complainants rely on any mistake by their former attorney. The Motion cites to a single case that holds extrinsic fraud can exist when an attorney is incapacitated, but then admits that Cross-Complainants’ former counsel was never incapacitated. (Motion, pp. 8:20-9:3.) No authority is cited for Cross-Complainants’ argument that their former attorney’s lack of communication amounts to extrinsic fraud. (Id. at p. 9:3-8.)

Therefore, the Court finds that no extrinsic fraud deprived Cross-Complainants of their day in court. The doctrine of res judicata, on which the Demurrer to the First Amended Cross-Complaint was originally sustained, is founded on the necessity to conclude litigation, such as this action by Cross-Complainants:

The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation.”

Roos v. Red (2005) 130 Cal.App.4th 870, 879 [citing Citizens for Open Access Etc. Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053, 1065].)

Cross-Complainants Trusted Hands Home Health and Armine Yengibaryan’s Renewed Motion to Vacate Ruling on Demurrer is DENIED.