Judge: Rafael A. Ongkeko, Case: 18CHLC21059, Date: 2022-09-02 Tentative Ruling
Note:
The court's tentative rulings, as posted, will not have the same formatting "look" as the court's original Word version.
A pdf version of the latter will be available in court to those appearing in person or by email upon request made to the clerk before the hearing for those appearing remotely.
Dept. D contact information:
Email: samdeptd@lacourt.org.
Phone: (310) 255-2483
Case Number: 18CHLC21059 Hearing Date: September 2, 2022 Dept: D
9/2/22
Dept. D
Rafael Ongkeko, Judge presiding
VIDEO SYMPHONY, LLC v. DAVID
GROSS (18CHLC21059)
Counsel for Plaintiff: Michael Flanagan (Debt Enforcement Law Group)
Counsel for Defendant: Roger Franklin (L.O. of Roger Franklin)
MATTERS:
1.
Plaintiff’s motion for judgment to be vacated
and entry of new judgment(filed 8/10/22)
2.
Defendant’s motion for attorney fees (filed 7/19/22)
[TENTATIVE] RULING:
1.
Plaintiff’s motion to vacate judgment and enter
a new judgment is DENIED. There is no
basis to set aside and vacate the court’s decision and judgment.
2.
Defendant’s motion for attorney fees: No tentative.
Hear argument and take under submission if necessary.
DISCUSSION
Plaintiff ‘s motion to vacate the judgment
Plaintiff brings its post-trial motion under CCP § 663(1),
which provides, in relevant part:
“A
judgment or decree, when based upon a decision by the court…may, upon motion of
the party aggrieved, be set aside and vacated by the same court, and another
and different judgment entered, for either of the following causes, materially
affecting the substantial rights of the party and entitling the party to a
different 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….”
Plaintiff’s motion to vacate the judgment is denied. The court will not reweigh the facts. The evidence was controverted. The evidence supporting Plaintiff’s position
that Defendant owed Plaintiff’s assignor for attendance in 2013-2014, or at a
minimum, for attendance in 2013, was controverted by Plaintiff’s own IRS Form
1098-T which the school mailed to Defendant.
That form (Defense Exhibit 32) acknowledges receipt of “Payments…for
qualified tuition and related expenses” in the amount of $8,006.83 for the year
2013. Without personal knowledge, Michael
Flanagan, Plaintiff’s counsel, testified that the form was in error. Mr. Flanagan testified that the amount should
have been inserted in Box 2, “Amounts billed for qualified tuition and related
expenses.” Without further proof, Mr.
Flanagan posited that the $8,006.83 was a bill for prorated tuition in 2013. The court did not find Plaintiff’s proffered
explanation sufficient. One quarter’s
tuition (for the last quarter of 2013) was $5,547.50, which would have been the
correct amount (plus perhaps other minor fees, etc.). There was not a sufficient explanation for the
additional amounts purportedly billed as “prorated” tuition. As noted in the next paragraph, different
charges were itemized much later that do not explain how the $8,006.83 was
arrived at.
For his part, Defendant testified that applying for, and
obtaining, financial aid was critical to his attendance. Thus, Form 1098-T was consistent with what he
believed the school received and that he did not owe the school anything more. As corroboration, there was no evidence that
the school ever demanded payment until May, 2014, or even produced a billing
statement until much later in 2014 when
it issued an account statement for over $14,000 (Plaintiff’s Ex. 6). Another itemization of charges dated 12/9/14
shows a $7,000 charge for “Current Billing Period,” with a total cost of
$24,169.45. (Plaintiff Ex. 1) Moreover,
if indeed there was an inputting error on the form, Plaintiff presented no
evidence that it issued another form for the 2013 year timely correcting its
error.
The evidence regarding the $10,000 check (Plaintiff’s Ex.
7) was also controverted. To hold his
place when he applied in 2013, Defendant testified that the school’s financial
aid office told him not to date this check for $10,000. The memo line noted “1st & 2nd
quarter.” Defendant even denied signing
or dating the check. Long after
Defendant last attended the school, in Jan. 2015, Plaintiff attempted to
negotiate the check, now bearing a date of 12/28/14, but it bounced. (At trial, Plaintiff voluntarily dismissed
the second cause of action re the bounced check.)
Plaintiff relies on its RFA #3 where Defendant admitted
that he did not “pay any monies,” with “pay” being defined as “providing any
monies by you or on your behalf” to the school.
In the court’s view, this
admission is neither conclusive nor dispositive given Defendant’s testimony
regarding his need for financial aid, his interaction with the financial
office, including the school’s “hold” on the $10,000 check, and Form 1098T
which the school mailed to Defendant acknowledging payments received in excess
of one quarter’s attendance. The
circumstances Defendant laid out were sufficient to create an ambiguity in his
response to RFA #3, creating a controverted matter which the court weighed in
Defendant’s favor.
As far as any tuition owed for attendance in 2014, the
evidence was controverted regarding Defendant’s attendance at all. The court finds no need to revisit that issue
and it, too, does not constitute a basis to vacate the judgment.
Defendant’s motion for attorney’s fees
No tentative. Hear
argument and take under submission if necessary.
Unless waived, notice of ruling by defendant.