Judge: Mark E. Windham, Case: LAM13K06108, Date: 2023-02-06 Tentative Ruling
Case Number: LAM13K06108 Hearing Date: February 6, 2023 Dept: 26
MOTION TO VACATE;
DISBURSMENT OF SURPLUS FUNDS
(Civil Code § 2924j; Govt. Code § 68084.1)
TENTATIVE RULING:
Claimant Nik Eames’ Motion to Set Aside Dismissal of the
Case and Reopen the Case and Claim and Motion for Order to Disburse Surplus
Funds is ruled on as follows. ORDER TO SHOW CAUSE REGARDING DISPOSITION OF
UNCLAIMED SURPLUS FUNDS IS SET FOR FEBRUARY 27, 2023 AT 9:30 AM IN DEPARTMENT
26 IN THE SPRING STREET COURTHOUSE.
ANALYSIS:
On May 10, 2013, Petitioner National Default Servicing
(“Petitioner”) filed the instant Petition and Declaration Regarding Unresolved
Claims and Deposit of Undistributed Surplus Proceeds of Trustee’s Sale. On July
31, 2013, the Court granted Petitioner’s Motion for Order to Deposit
Undistributed Surplus Proceeds of Trustee’s Sale and Order that Petitioner be
Discharged from Further Responsibility. (Minute Order, 07/31/13.) The Court
ordered that Petitioner deposit the surplus funds with an award of attorney’s
fees deducted from the deposited amount. (Ibid.) Petitioner deposited
surplus funds of $20,615.48 with the Court on August 14, 2013 and the Court set
a hearing on disbursement of the funds for November 6, 2013. (Minute Order,
08/14/13.) A hearing on disbursement of the funds was set for November 6, 2013.
(Ibid.) The Court ordered multiple continuances of the hearing on
disbursement until July 27, 2015, at which time no party appeared. (Minute
Order, 07/27/15.) The Court took the disbursement hearing off calendar and set
an Order to Show Cause re Dismissal for September 14, 2016. (Ibid.) The
Order to Show Cause was then continued to October 27, 2016; when no party
appeared, the Court ordered this action dismissed. (Minute Orders 09/14/16,
10/27/16.)
Claimant Nik Eames filed a Motion for Order to Disburse
Surplus Funds on September 8, 2022. At the hearing on October 12, 2022, the
Court placed the Motion for Order to Disburse off calendar on the grounds that
the action had been dismissed for six years. (Minute Order, 10/12/22.) Claimant
now brings the instant Motion to Set Aside the Court’s Order on the Motion to
Disburse.
Discussion
The instant Motion to Vacate is brought pursuant to Code of
Civil Procedure section 475, which states in relevant part:
No judgment, decision, or decree shall
be reversed or affected by reason of any error, ruling, instruction, or defect,
unless it shall appear from the record that such error, ruling, instruction, or
defect was prejudicial, and also that by reason of such error, ruling,
instruction, or defect, the said party complaining or appealing sustained and
suffered substantial injury, and that a different result would have been
probable if such error, ruling, instruction, or defect had not occurred or
existed.
(Code Civ. Proc., § 475.) The Motion, however, does not
point to any error by the Court that must now be reversed. It seems to imply
that dismissal of the case on October 27, 2016 was in error, but does not
explain why. (See Motion, p. 6:14-15.) The Motion, therefore, does not provide
any basis to set aside the order denying the Motion to Disburse.
However, the Court may reconsider its orders on its own
motion. The Court hereby notifies all interested parties that it is
reconsidering its October 27, 2016 order dismissing the action and entering a
new and different order directing the clerk to transfer the surplus funds, in
the amount of $20,615.48, to the State Controller’s Office pursuant to the
Unclaimed Property Law. (See Civ. Code, § 2924j, subd. (g); Civ. Proc. Code, §
1519.5.) Accordingly, an Order to Show Cause regarding disposition of the
unclaimed surplus funds is set for February 27, 2023 at 9:30 am in Department
26 in the Spring Street Courthouse.
The clerk is directed to give notice to all interested
parties, including Claimant Nick Eames, Petitioner and all potential claimants
identified in the Petition and Declaration Regarding Unresolved Claims and
Deposit of Undistributed Surplus Proceeds of Trustee’s Sale, CIV-170.
Conclusion
Claimant Nik Eames’ Motion to Set Aside Dismissal of the
Case and Reopen the Case and Claim and Motion for Order to Disburse Surplus
Funds is ruled on as follows. ORDER TO SHOW CAUSE REGARDING DISPOSITION OF
UNCLAIMED SURPLUS FUNDS IS SET FOR FEBRUARY 27, 2023 AT 9:30 AM IN DEPARTMENT
26 IN THE SPRING STREET COURTHOUSE.
Court clerk to give notice.