Judge Richard S. Whitney, Case 37-2019-00036989-CU-OR-CTL 2023-12-15 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2019-00036989-CU-OR-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 13, 2023

12/15/2023 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Other Real Property Motion to Dismiss 37-2019-00036989-CU-OR-CTL RAMSDEN VS RAMSDEN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: DEFENDANT CHARLES GALLAGHER RAMSDEN'S MOTION TO SET ASIDE ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANT CHARLES GALLAGHER RAMSDEN BASED ON NEW FACTS is DENIED.

On February 3, 2023, this Court partially granted Defendant CHARLES GALLAGHER RAMSDEN's ('Defendant') motion to set aside the entry of default judgment obtain against Defendant by Plaintiff Soila Ramsden, as an individual and as Trustee of the Ramsden Family Trust dated July 22, 2013 ('Plaintiff'). The motion was granted, in part, based on the failure to state an amount for damages in the complaint, as required. The remainder of the judgment was not set aside. On April 28, 2023, the Court granted Plaintiff's motion for leave to amend the complaint. The Court stated '[t]he proposed first amended complaint (filed on February 14, 2023) is deemed filed and served.' The notice of this ruling was served on May 17, 2023. Defendant filed this motion on June 16, 2023, a month later.

Defendant moves under CCP sections 473(d) and 1008(b). Plaintiff asserts a motion under CCP section 1008 (b) is untimely. Unlike CCP section 1008(a), CCP section 1008(b) does not contain the same 10-day limit. CCP section 1008(b) provides, in part: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown....

(Code Civ. Proc., § 1008(b).) It appears this Court has jurisdiction to decide a motion under CCP section 1008(b), but not CCP section 1008(a).

A motion under CCP section 1008(a) must be made 'within 10 days after service upon the party of written notice of entry of the order....' (Code Civ. Proc., § 1008(a).) The 10–day period began from [Plaintiff's] service of the notice of entry and not from the clerk's service of the dismissal order. Section 1019.5, subdivision (a), provides: 'When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order shall be given by the prevailing party to all other parties or their attorneys, in the manner provided in this chapter, unless notice is waived by all parties in open court and is entered in the minutes.' (§ 1019.5, subd. (a).) The purpose of Calendar No.: Event ID: TENTATIVE RULINGS

2986899 70 CASE NUMBER: CASE TITLE: RAMSDEN VS RAMSDEN [IMAGED] 37-2019-00036989-CU-OR-CTL such notice is to start the time running on a party's ability to seek reconsideration.

(Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 203 [58 Cal.Rptr.3d 466, 481] disapproved of by Shalant v. Girardi (2011) 51 Cal.4th 1164 on other grounds.) If treated as a motion under CCP section 1008(a) then it is untimely filed and served. Defendant asks this Court to reconsider its motion partially vacating the judgment based on a failure to include a statement of damages. Defendant's new facts are that this Court permitted Plaintiff to file an amended pleading to include the statement of damages and Plaintiff did so. As discussed below, the Court is not persuaded the new facts justify vacating the judgment. Therefore, whether the motion was timely and/or treated as a motion under CCP section 1008(a) does not alter the end result, the motion is still denied.

Defendant's memorandum of points and authorities wholly fails to mention CCP section 473(d). 'The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.' (Code Civ. Proc., § 473(d).) Defendant asserts this Court's order is void because the amended complaint filed and served by Plaintiff superseded the complaint on which the default judgment was based.

Defendant cites State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, where the court addressed whether the filing of an amended complaint mooted a motion for summarily adjudication such that the order as to the summary adjudication should be reversed. 'It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading.' (Id. at 1130 [Citation omitted].) 'Because there is but one complaint in a civil action [Citation], the filing of an amended complaint moots a motion directed to a prior complaint.' (Id. at 1131.) The court in State Compensation granted the petition for writ of mandate to force the trial court to vacate its ruling as to the motion for summary adjudication. The motion should have essentially been treated as moot given the filing of an amended pleading. In State Compensation a default judgment was not challenged nor was an amended pleading analyzed to determine if it voided a default judgment based on it superseding the original complaint upon which the default judgment was entered.

'It is a well settled proposition that a judgment may be in part valid and in part void. Unless the two portions are so inseparably connected that the one part cannot be declared void without vitiating the other, the rule is, that the portion which is not in excess of jurisdiction may stand and the remainder be considered null.' (Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493, 508 [Citation omitted].) The Court already set aside the portion of the judgment that was void. The amended complaint does not alter this Court's prior ruling. Defendant does not cite any law that states the filing of an amended pleading in the type of situation in this case – partially voided judgment based on a failure to include a statement of damages (which did not affect the quiet title cause of action) – results in the complaint being superseded even though there is already a judgment entered upon the original complaint. The Court finds Defendant's argument is without merit.

'After a defendant's default has been entered, if ' 'a complaint is amended in matter of substance as distinguished from mere matter of form, the amendment opens the default, and unless the amended pleading be served on the defaulting defendant, no judgment can properly be entered on the default' ' and any judgment is thus void.' (Paterra v. Hansen (2021) 64 Cal.App.5th 507, 529 [Citations omitted].) Here, the amended pleading was served on Defendant after the entry of judgment. Paterra does not address a situation where an amended pleading is served on the defaulted party after the court partially sets aside the default judgment based solely on the need to include a statement of damages.

Plaintiff does not dispute that an amended pleading that increases the damages sought is a material change. 'An amended complaint makes material changes when it increases the damages sought, or adds or changes a cause of action based on a different factual or legal theory.' (Paterra v. Hansen (2021) 64 Cal.App.5th 507, 530.) However, the Court agrees that the quiet title portion of the judgment was not materially changed by the statement of damages. A claim for quiet title does not include Calendar No.: Event ID: TENTATIVE RULINGS

2986899 70 CASE NUMBER: CASE TITLE: RAMSDEN VS RAMSDEN [IMAGED] 37-2019-00036989-CU-OR-CTL damages. (Code Civ. Proc., § 761.020; Thompson v. Ioane (2017) 11 Cal.App.5th 1180, 1195.) 'When there are multiple defendants, the rule requiring new service of a materially-changed complaint applies only if the change or addition relates to the particular defendant.' (Paterra, supra, 64 Cal.App.5th at 529–530.) Logically, if the non-materially-changing portion of the complaint did not need to be served on Defendant, as it did not affect him, then the judgment would not be voided if it was not served on him.

The only portion that would be voided would be as to the portion the Court already set aside – the materially changes portion. Defendant does not dispute he was served with the amended complaint containing the material changes. The Court finds Defendant's argument in this area lacks merit. The motion is denied.

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