Judge Richard S. Whitney, Case 37-2022-00012676-CL-OR-CTL 2023-12-29 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2022-00012676-CL-OR-CTL, Date: 2023-12-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 28, 2023

12/29/2023 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Limited Other Real Property Motion Hearing (Civil) 37-2022-00012676-CL-OR-CTL SAN DIEGO COUNTRY ESTATES ASSOCIATION VS HARDISON [IMAGED] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION FOR NEW TRIAL OR ALTERNATIVELY TO VACATE JUDGMENT AND ENTER NEW JUDGMENT is GRANTED.

Plaintiff SAN DIEGO COUNTRY ESTATES ASSOCIATION ('Plaintiff') moves under CCP section 657(1), (5), (6), and (7). A new trial may be granted for any of the following reasons if they materially affected the substantial rights of the moving party: 1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

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5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

(Code Civ. Proc., § 657.) The error in law must be prejudicial in order for the Court to grant a new trial.

(Cal. Const. Art. VI, § 13.) 'If it clearly appears that the error could not have affected the result of the trial, the court is bound to deny the motion.' Bristow v. Ferguson (1981) 121 Cal.App.3d 823, 826.) Plaintiff also moves under CCP section 663. CCP section 663 provides in relevant part: A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, 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.

2. A judgment or decree not consistent with or not supported by the special verdict.

(Code Civ. Proc., § 663.) 'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.' (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) Calendar No.: Event ID: TENTATIVE RULINGS

3049609 45 CASE NUMBER: CASE TITLE: SAN DIEGO COUNTRY ESTATES ASSOCIATION VS HARDISON 37-2022-00012676-CL-OR-CTL A notice of motion for new trial must be filed and served '[a]fter the decision is rendered and before the entry of judgment.' (Code Civ. Proc., § 659(a)(1).) The notice must also be filed and served: Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.

(Code Civ. Proc., § 659(a)(2).) As a notice of entry of judgment has not been served, the 15-day period has not begun. Therefore, the Court has '75 days after the filing of the first notice of intention to move for a new trial' to rule on the motion. (Code Civ. Proc., § 660(c).) The notice of this motion was filed on November 8, 2023, which means this Court must rule on the motion by January 22, 2024. (Code Civ.

Proc., § 660.) The Court has reviewed the Exhibit C to Darren Shaw's declaration. The Court notes there are $8,692.37 in charges ($0.18 difference from that claimed in the declaration), including assessments, interest, late charges, attorney's fees and legal fees. The ledger is dated up until October 16, 2022.

Plaintiff did not submit any evidence of further amounts due and owing after October 16, 2022. The amount for assessments, interest, and late charges total $4,937.19. The attorney's fees and legal fees in the ledger total $3,755. The application for judgment listed $3,755 as a credit; however, the application for judgment also sought $5,240 in attorney's fees.

The Court finds the evidence supports $4,937.19 in damages, $622.81 in costs, and attorney's fees in the amount of $5,240 for a total of $10,800. The judgment appears to have erroneously deducted amounts from the $4,937.19 amount. While the amount of time spent on this matter appears a little high, the Court is sufficiently persuaded that the lodestar is overall reasonable under the circumstances. The Court elects to correct the judgment such that it reflects a total of $10,800 for the reasons discussed above. The motion is granted as discussed above. Plaintiff is directed to submit a proposed corrected judgment.

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