Judge Melvin D. Sandvig, Case 20CHCV00354 2022-08-12 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 20CHCV00354, Date: 2022-08-12 Tentative Ruling

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Case Number: 20CHCV00354 Hearing Date: August 12, 2022 Dept: F47

Dept. F47

Date: 8/12/22

Case #20CHCV00354

MOTION TO SET ASIDE JUDGMENT

Motion filed on 4/25/22.

MOVING PARTY: Defendant Estuardo Lopez

RESPONDING PARTY: Plaintiff Jorge M. Urizar Del Valle

RELIEF REQUESTED: An order setting aside the judgment entered against Defendant on 1/7/22 after a court trial held on 12/14/21.

RULING: The motion is denied.

Plaintiff Jorge M. Urizar Del Valle (Plaintiff) alleges that on or about 8/23/17, he and Defendant Estuardo Lopez (Defendant) entered a verbal commercial lease agreement whereby Plaintiff leased a portion of Defendant’s mechanic shop for $1,500.00/month. Plaintiff contends that on or about 4/7/20, Defendant asked Plaintiff to leave/terminate the tenancy. Plaintiff contends that on 5/7/20, Defendant locked him out of the premises and has refused his requests for access to the premises.

On 6/12/20, Plaintiff filed this action for: (1) Breach of Contract, (2) Wrongful Eviction/Self Help – Violation of CC 1940.2(a); (3) Intentional Interference With Prospective Economic Advantage; (4) Slander Per Se; (5) Injunctive Relief; (6) Trespass and (7) Violation of CC 52.1 – Bane Act.

On 12/14/21, Defendant failed to appear for trial. (See 12/14/21 Minute Order). Thereafter, a court trial was held and the Court found judgment for Plaintiff and against Defendant as follows: Damages: $15,540.00; Loss of Income: $60,000.00; Punitive Damages: $25,000.00. Id. In addition, the Court found that Plaintiff was to recover prejudgment interest at the rate of 10% from May 7, 2020 to the date judgment is entered and, if allowed, attorney's fees and/or costs would be awarded by motion and/or memorandum of costs. Id. Plaintiff was ordered to prepare, serve and submit a proposed judgment. Id. On 1/7/22, judgment was entered pursuant to the Court’s findings on 12/14/21. (See 1/7/21 Judgment).

On 4/25/22, self-represented Defendant filed and purportedly served the instant motion seeking an order setting aside the judgment entered against Defendant on 1/7/22 after a court trial held on 12/14/21.

Defendant makes the motion pursuant to CCP 473(b) which provides, in relevant part:

The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. (emphasis added)

Defendant claims that he failed to appear at the trial on 12/14/21 due to a medical emergency that required his admittance to the hospital from 12/13/21 through 12/15/21.

While the medical records attached to Defendant’s “Hearing Notice” filed on 4/25/22 support Defendant’s claim that he was hospitalized from 12/13/21 through 12/15/21, they do not indicate that Defendant was unconscious or otherwise incapable of notifying the court of the circumstances on 12/14/21. Defendant’s declarations filed in support of the motion do not explain why Defendant did not call to notify the court or opposing counsel that he was in the hospital. Similarly, Defendant fails to explain why he waited more than 4 months after the 12/14/21 trial date and more than 3 months after the entry of judgment on 1/7/22 to file and serve the instant motion on 4/25/22.

On 6/29/22, the hearing on the motion was continued to 8/12/22 due to issues with the service of the motion on Plaintiff. (See 6/29/22 Minute Order). Defendant was ordered to re-serve the motion and to file and serve a supplemental declaration setting forth the above-mentioned information. (Id. at p.2). The filing and service deadlines were pursuant to Code of Civil procedure Section 1005. Id. Defendant was also ordered to file a proof of service for such documents which complies with the requirements for how such service was accomplished. Id. Notice of the Court’s ruling was mailed on 6/30/22. Id.; (See also Certificate of Mailing filed 6/29/22).

There is no evidence that Defendant re-served the motion on Plaintiff as ordered by the Court on 6/29/22. On 7/18/22, Plaintiff filed an opposition to the motion indicating that his counsel was never served with the motion as ordered by the Court on 6/29/22. (See Soleimanian Decl.). Additionally, Defendant did not file and serve a supplemental declaration in support of the motion until 8/10/22 (2 court days before the hearing). As noted above, the filing and service deadlines were pursuant to CCP 1005(b) meaning that the motion and supplemental declaration were required to be filed and served at least 16 court days before the continued hearing date plus 5 additional calendar days, if served by mail. It appears that the declaration and response to opposition filed on 8/10/22 are intended to be in reply to Plaintiff’s opposition. However, the filing and service of such documents on 8/10/22 is also untimely for reply documents which are required to be filed and served at least 5 court days before the hearing. CCP 1005(b). Further, reply documents must be served via a method reasonably calculated to ensure delivery by the close of the next business day. CCP 1005(c). The proofs of service attached to the response/reply documents suffer from the same defects as the proof of service for the original motion. (See 6/29/22 Minute Order; Proofs of Service attached to Response to Opposition and Defendant’s Supporting Declaration both filed on 8/10/22). The proofs of service for the reply documents are also defective because they set forth two different purported service dates, 6/6/22 and 8/10/22). Id. Even if the reply documents were mailed to Plaintiff’s counsel on 8/10/22, it is unlikely that they would have been received before the hearing on the morning of 8/12/22.

The opposition notes that Defendant’s failure to appear at the trial was not the first time Defendant has not appeared at a court hearing and notes that Defendant indicated at the Final Status Conference that he could not attend the 12/14/21 trial date because of the medical condition of a relative. Id. The Court denied Defendant’s oral motion to continue trial made on 12/3/21 at the Final Status Conference. (See 12/3/21 Minute Order). Based on the foregoing, the Plaintiff argues that Defendant’s checking himself into the hospital the night before the trial date was merely an attempt to have an excuse for his failure to appear. In the late reply, Defendant does not directly address the foregoing accusation. Rather, he merely reiterates that he was hospitalized from 12/13/21 to 12/15/21 because he was ill and states that “calling the Court was not in his mind.” (See Lopez Decl. ¶4 filed 8/10/22).

Defendant blames the 4-month delay in filing this motion for relief, in part, on the claim that the 6/29/22 hearing date was the earliest available date on the Court’s calendar. (See Response to Opposition ¶5). However, CCP 473(b) does not require that the motion be heard by the Court within a reasonable time, just that it be made (i.e., filed) within a reasonable time. CCP 473(b). Defendant further states that “[u]nfortunately, it took a little long to present the documents in support of Defendant’s request. Defendant does not have the economical means to pay an attorney and he had to wait until someone would be able to help him.” (Response to Opposition ¶6). As a self-represented litigant, Defendant is held to the same standards as a represented party. See ViaView, Inc. (2016) 1 CA5th 198, 208.

Even considering the late documents filed by Defendant and accepting that he was hospitalized from 12/13/21 to o12/15/21, he has not shown that his failure to notify the Court or have someone else notify the Court on his behalf of the situation and/or the delay in filing this motion were reasonable.