Judge: Robert B. Broadbelt, Case: 18STLC07829, Date: 2024-08-14 Tentative Ruling

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Case Number: 18STLC07829    Hearing Date: August 14, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTY:                 Cross-complainant and cross-defendant Velisa Johnson           

RESPONDING PARTY:       Cross-defendant EOL Builders

Motion for New Trial Against Cross-Defendant EOL Builders

The court considered the moving and opposition papers filed in connection with this motion.  No reply papers were filed.[1]

DISCUSSION

Cross-complainant and cross-defendant Velisa Johnson (“Cross-Complainant”) moves the court for an order granting a new trial on the ground that there was insufficient evidence to justify the court’s order granting the motion for summary judgment filed by cross-defendant EOL Builders (“Cross-Defendant”) as to Cross-Complainant Velisa Johnson’s Cross-Complaint.  (Code Civ. Proc., § 657, subd. (6); Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1504 [“An order granting summary judgment is properly challenged by a motion for a new trial”].)  Specifically, Cross-Complainant contends that there was insufficient evidence to grant summary adjudication in favor of Cross-Defendant on the third, fourth, and fifth causes of action alleged in Cross-Complainant Velisa Johnson’s Cross-Complaint, such that the court’s order granting summary judgment in its favor and against Cross-Complainant was improper and not supported by sufficient evidence.  (Notice of Intent to File Mot. for New Trial, p. 2:3-9; Memo., p. 5:1-5 [Cross-Complainant “does not seek a new trial on” the first and second causes of action].)

“The authority of a trial court in this state to grant a new trial is established and circumscribed by statute.”  (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.)  “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.”  (Code Civ. Proc., § 657.)  “When a trial court rules on a motion for new trial based upon inadequacy of the evidence, it is vested with a ‘plenary’ power—and burdened with a correlative duty—to independently evaluate the evidence.”  (Ryan v. Crown Castle NG Networks Inc. (2016) 6 Cal.App.5th 775, 784.)  “The trial judge has to be satisfied that the evidence, as a whole, was sufficient to sustain the verdict; if he was not, it was not only the proper exercise of a legal discretion, but his duty, to grant a new trial.”  (Ibid. [internal quotation marks and citations omitted].)

First, the court finds that Cross-Complainant’s motion for new trial was timely filed.

On June 14, 2023, the court issued an order granting Cross-Defendant’s motion for summary judgment on Cross-Complainant’s Cross-Complaint.  (June 14, 2023 Order, p. 10:13-14.)  The court entered judgment in favor of Cross-Defendant and against Cross-Complainant on December 19, 2023.  (Dec. 19, 2023 Judgment, pp. 2:15-22, 2:23-3:4.)  On that date, the court issued a minute order stating that “[t]he Court has signed and filed Judgment [a]s [t]o Cross-Defendants EOL Builders, Frank Lavie, & Angus Chamberlain.”  (Dec. 19, 2023 Minute Order, p. 1.)  The December 19, 2023 Certificate of Mailing states that the court’s December 19, 2023 minute order was served on counsel for Cross-Complainant.  (Dec. 19, 2023 Cert. of Mailing, p. 1 [listing served party as David Sternfeld].)  Cross-Defendant contends that service of the December 19, 2023 minute order constituted notice of entry of judgment on Cross-Complainant, such that Cross-Complainant’s notice of intention for new trial, filed on June 13, 2024, was untimely filed.  The court disagrees.

“The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits of the minutes of the court, or both, either: [¶] (1) After the decision is rendered and before the entry of judgment[, or] [¶] (2) 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, subd. (a).)  “These time limits are jurisdictional.”  (In re Marriage of Herr (2009) 174 Cal.App.4th 1463, 1468.)

As set forth above, the court’s December 19, 2023 minute order stated that the court entered judgment as to, inter alia, Cross-Defendant.[2]  (Dec. 19, 2023 Minute Order, p. 1.)  However, “‘to qualify as a notice of entry of judgment under Code of Civil Procedure section 664.5, the clerk’s mailed notice must affirmatively state that it was given “upon order by the court” or “under section 664.5,” and a certificate of mailing the notice must be executed and placed in the file.’”  (Simgel Co., Inc. v. Jaguar Land Rover North America, LLC (2020) 55 Cal.App.5th 305, 314.)  Because the December 19, 2023 minute order, which the clerk served on counsel for Cross-Complainant, did not state that (1) it was entered upon order by the court, or (2) it was issued under Code of Civil Procedure section 664.5, the court finds that the clerk’s notice of the December 19, 2023 minute order did not constitute notice of entry of judgment pursuant to section 664.5 and therefore did not begin the 15-day limit by which Cross-Complainant was required to file the notice of intention to move for a new trial.  (Ibid.; Code Civ. Proc., § 659, subd. (a).)  Further, Cross-Complainant filed the notice of her intention to move for a new trial within 180 days after the December 19, 2023 entry of judgment.  (Code Civ. Proc., § 659, subd. (a).)  Thus, the court finds that Cross-Complainant’s motion for a new trial was timely filed and therefore rules on her motion on the merits.

Second, the court finds that the order granting Cross-Defendant’s motion for summary judgment in its favor and against Cross-Complainant was supported by sufficient evidence to justify the order.  (Code Civ. Proc., § 657, subd. (6).)

Cross-Complainant contends that the evidence presented by Cross-Defendant in support of its motion for summary judgment was insufficient to support the court’s order granting summary adjudication (and, subsequently, summary judgment) in its favor on her third, fourth, and fifth causes of action because certain of the Requests for Admission relied on by Cross-Defendant and the court concerned Cross-Defendant’s breach of contract and the alleged damage to her property, or were otherwise insufficient to show that the tort causes of action did not have merit.  (Memo., p. 5:6-25.)  However, not all of the subject admissions were limited to her claims supporting the cause of action for breach of contract or for property damage.  For example, Request for Admission number 14 requested that Cross-Complainant admit that “[a]ny and all damage claimed by [Cross-Complainant] in this lawsuit was caused by [Cross-Complainant’s] instruction that [Cross-Defendant] stop all work on THE PROJECT.”  (Aniel Decl. filed March 27, 2023, Ex. 3, Request for Admission served on Cross-Complainant on September 10, 2019, p. 3:27-28.)  Thus, that admission concerned all of Cross-Complainant’s requests for damages in this action, including those for emotional distress and other types of damages.  (Memo., p. 6:7-8 [arguing that the requests did not address damages for delay, loss of use, or emotional distress].)

Moreover, Cross-Complainant does not dispute that, on August 24, 2020, the court issued an order (1) granting Cross-Defendant’s motion to deem requests for admission admitted, and  (2) ordering that “the truth of the matters specified” in Cross-Defendant’s Requests for Admission, Set One, served on Cross-Complainant was “deemed admitted.”  (Aug. 24, 2020 Order, p. 4:16-19.)  Thus, Cross-Complainant does not meaningfully dispute that she admitted that her conduct caused all the damages of which she complained in her Cross-Complaint.

After weighing the evidence and reviewing the record, the court finds that the evidence is sufficient to justify the court’s order granting summary judgment because (1) the admissions support the court’s finding that Cross-Defendant met its burden to show that the third, fourth, and fifth causes of action had no merit because Cross-Complainant admitted that she was not damaged by Cross-Defendant’s alleged wrongful conduct and was instead damaged as a result of her own conduct, and (2) Cross-Complainant did not submit evidence showing the existence of a triable issue of material fact as to that element.  (June 14, 2023 Order, pp. 7:20-8:4, 8:22-9:7, 9:14-10:3; Ryan, supra, 6 Cal.App.5th at p 784.)  The court therefore denies Cross-Complainant’s motion for a new trial.  (Code Civ. Proc., § 657, subd. (6).)  

ORDER

            The court denies cross-complainant and cross-defendant Velisa Johnson’s motion for new trial against cross-defendant EOL Builders.

            The court orders cross-defendant EOL Builders to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 14, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court