Judge: Richard J. Burdge, Case: 21STCV22153, Date: 2023-08-22 Tentative Ruling

Case Number: 21STCV22153    Hearing Date: August 22, 2023    Dept: 3

LOS ANGELES COUNTY SUPERIOR COURT

Plaintiffs Soto and Castro filed a notice of intention to move for a new trial within 10 days of notice of entry of final judgment, entered on July 10, 2023, on the jury verdict. The court finds the notice of intention for new trial to be timely filed.

Plaintiffs move for new trial on the following grounds:  (1) Irregularity in the proceedings of, or abuse of discretion by the Court (Code of Civil Procedure §657(1)); (2) Jury Misconduct (Code of Civil Procedure §657(2)) (3) Accident or surprise, which ordinary prudence could not have guarded against (Code of Civil Procedure §657(3)); (4) The award of damages was inadequate (Code of Civil Procedure §657(5)); (5) The evidence was insufficient to justify the verdict. (Code of Civil Procedure §657(6)); (6) The verdict is contrary to law (Code of Civil Procedure §657(6)); and (7) Error in law occurring at the trial and objected to by the moving party (Code of Civil Procedure §657(7).  Plaintiffs filed a supporting memorandum and a declaration of John Ksajikian in support of the motion.   Defendant Jaimes filed an opposition memorandum and a declaration of Eric Palmer in opposition to the motion. 

The court finds that the motion was not timely filed.

For the reasons stated below, the court does not consider the motion for a new trial.

While the notice of intention to move for new trial listed all of the grounds stated above, Plaintiffs briefed only the issues of insufficiency of the evidence (Mem. Part II.B).  The Opposition points out that the motion was not timely filed.  (Opp. Part III.A.)  The court agrees.

On Friday, August 4, 2023, at about 7:05 p.m., Plaintiffs filed declarations in support of a proposed order and a proposed order, seeking to extend the time for filing the motion for new trial and motion for judgment notwithstanding the verdict from that day to and including August 18, 2023.  Although styled as “declarations,” the document was actually an ex parte application that did not comply with the appropriate rules of court such an application.  (See CRC 3.1200-3.1206.)  Having received no opposition to the proposed order by Tuesday, August 8, 2023, the court considered it notwithstanding plaintiffs’ failure to comply with the rules for an ex parte order and issued its order granting plaintiffs all the additional time available under the circumstances to file their motions and allow a reasonable, although shortened, time for defendant’s opposition.  (See Order filed August 8, 2023.)

The Order did not grant plaintiffs the extension they requested.  Instead, due to the court’s unavailability after August 23 and prior to the deadline for ruling on a new trial or jnov motion, the court ordered the motion to be filed by Friday, August 11, 2023, which was a one-week extension, and ordered defendant to file an opposition by August 18, 2023.  Rather than comply with the court order, plaintiffs filed their motion for new trial on or about 9:10 p.m. on August 18, as requested but denied by the court.  Plaintiffs now claim the court judicial assistant orally gave them an extension until Monday.  The judicial assistant states she did not give such an extension and was not authorized to give an extension contrary to the court’s written order without obtaining approval from the court, which she did not do.  The judicial assistant confirms that she did tell plaintiffs’ counsel that she would be available in the courtroom between 4:30 and 5:00 on Friday afternoon.  Plaintiffs’ counsel could not reasonably rely on a request to change a written court order by an ex parte telephone call to the judicial assistant.

Accordingly, the court will not consider the late-filed motion and takes the hearing off calendar.

Dated:   August 22, 2023.                                            __________________________

Hon. Richard J. Burdge, Jr.