Judge Ronald F. Frank, Case Number: 21TRCV00528, Date: 2023-11-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 21TRCV00528, Date: 2023-11-01 Tentative Ruling

Case Number: 21TRCV00528 Hearing Date: November 1, 2023 Dept: 8

TENTATIVE RULING

HEARING DATE: November 1, 2023¿¿

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CASE NUMBER: 21TRCV00528

CASE NAME: Donald Christy v. Miguel A. Garcia

MOVING PARTY: Defendant, Miguel A. Garcia, in pro per

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RESPONDING PARTY: Plaintiff, Donald Christy

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JUDGMENT DATE: September 1, 2023

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MOTION:¿ (1) Motion for New Trial or to Set Aside Default Judgment

Tentative Rulings: (1) GRANTED in part, with conditions including payment of Plaintiff’s reasonable attorney’s fees and costs as noted below. Trial to be re-set at 10:30 a.m. in the last 2 weeks of November

I. BACKGROUND¿¿

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A. Factual¿¿

On July 21, 2021, Donald Christy (“Plaintiff”) filed a Complaint against Miguel A. Garcia (“Defendant”). The Complaint was based on a cause of action for Breach of Promissory Note. On November 19, 2021, Plaintiff filed a First Amended Complaint alleging causes of action for: (1) Breach of Promissory Note; and (2) Fraud and Deceit.

The Court conducted two Final Status Conferences (FSCs) in late July of 2023. The July 24 FSC was continued to July 28, 2028 to allow Plaintiff or his counsel to send Defendant a copy of the Promissory Note or contract in issue before trial. Per Defendant’s declaration in support of the Motion for New Trial or to Set Aside the judgment, Defendant DID receive a copy of the Promissory Note on July 28. On August 2, 2023, the trial went forward as the Court had indicated at the FSC. This Court entered judgment against the Defendant after Plaintiff proved up his case, and Defendant did not appear for the trial. Defendant now moves for a New Trial or for this Court to Set Aside and Vacate Judgment.

B. Procedural

On September 14, 2023, Defendant filed a Motion for New Trial or to Set Aside the August 2, 2023 Judgment. On September 25, 2023, Plaintiff filed an opposition. To date, no reply brief has been filed.

II. ANALYSIS¿

A. Legal Standard

Code of Civil Procedure section 657 provides the following grounds for granting a new trial motion, among others: (1) irregularity in the proceedings; (2) misconduct of the jury; (3) excessive or inadequate damages; (4) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law; and (5) error in law, occurring at the trial and excepted to by the party making the application. (Code Civ. Proc., § 657, subds. (1), (2), (5), (6), (7).)

In ruling on a new trial motion, the court sits as an independent trier of fact, and has the power to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact, in an effort to determine whether the jury clearly should have reached a different conclusion. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; Barrese v. Murray (2011) 198 Cal.App.4th 494, 503). “Unless such a moving party can show that by a retrial of the action, and supporting facts therefor are contained in the affidavit, he could establish an entirely different case favorable to himself in the event that a new trial be granted, it is a thoroughly settled rule that a motion for a new trial will not be granted.” (Moore v. Franchetti (1937) 22 Cal.App.2d 75, 79 (Moore).)

Defendants’ motion is predicated also on the alternative ground of Code of Civil Procedure section 473(b). This statute empower a trial court, “upon any terms as may be just, [to] relieve a party or his or her legal representative from a judgment . . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” An application for relief from a judgment must be made within a reasonable time, but in no case exceeding six months, after the judgment was taken. Here, the Judgment was entered on August 1, 2023 and the application for relief was filed six weeks later. The Court notes that Mr. Garcia’s supporting declaration indicates he was in Torrance, California when he signed the declaration, even though he had stated to the Court on July 28, 2023 that he could not afford to travel from his Oregon home to Southern California for the August 1, 2023 scheduled trial.

B. Discussion

Under the standards of Code of Civil Procedure § 657, the Court finds that Defendant has failed to present any of the above statutory reasons as to why a new trial should be granted. Defendant states that this Court evidenced “bias” when it suggested Defendant stipulate to a judgment, although that assertion lacks the context in which the Court was discussing potential options for the resolution of the case without trial. Next, Defendant also points to the fact that Plaintiff refused to produce any proof of any debt prior to the trial despite his request. However, there is no admissible evidence to show that Defendant made a formal written discovery request to Plaintiff requesting proof of debt, and the Court was not asked to make a discovery order on a formal motion to compel responses to any discovery by Defendant to Plaintiff. Further, as reflected by the Defendant’s own declaration in support of this motion, when he asserted at the July 24 FSC that he had never received a copy of the claimed contract or promissory note, the

Court continued the FSC and Mr. Garcia admits he did receive a copy of the claimed contract/promissory note on July 28, 2023, which was still before the scheduled trial date.

Plaintiffs’ motion asserts that he would have a valid statute of limitations defense, although his declaration does not provide sufficient facts for the Court to be able to determine if such a defense were or will be viable. A promissory note written in 2016 with a future payment obligation is not breached on the date of the contract, but rather is breached on a future date when there is a failure to pay on a timely basis. Suits for breach of a written contract are subject to a four-year statute of limitations, generally running from the date of the breach. The Statute of limitations is an affirmative defense on which a defendant bears the burden of proof. Similarly, Mr. Garcia’s declaration asserts that the promissory note contained a condition precedent to his payment obligation, and he asserts that condition has still not occurred. The Court recognizes that the statute of limitations defense and the condition precedent defense may be inconsistent with each other, in that if the payment obligation were never ripened because a condition precedent has not yet occurred, then the statute of limitations clock would not have yet begun to tick.

Defendant suggests that Plaintiff waited to produce the promissory note because Plaintiff was concealing that the note is beyond the four (4) year statute of limitations. In opposition, Plaintiff argues that the statute of limitations was not raised as an affirmative defense in Defendant’s pleadings, nor did he raise such a defense in his response to Plaintiff’s Form Interrogatories. Next, Plaintiff also argues that had such a defense been tendered, it was Defendant’s burden to provide the requisite facts, and had the opportunity to do so at trial, but did not attend the trial.

Defendant also argues that promissory note contained an express condition precedent, and that the note was not due or payable until Defendant received proceeds from the sale of real property, which had not and has not occurred. In opposition, Plaintiff contends that this assertion is neither consistent with the evidence at trial, nor is such assertion supported by any evidence in the motion. The Court agrees that this argument or position is not supported by anything in Defendant’s declaration.

Lastly, Defendant’s moving papers suggest that he argues that there should not be interest owed on the loan. The Court notes this position is contrary to California Civil Code § 3289.

While Defendant has failed to present sufficient evidence to warrant the granting of a motion for new trial, he has presented Section 473(b) grounds to set aside the judgment, on such terms as the Court determines to be just, because of his mistake and perhaps because of excusable neglect. Mr. Garcia did represent to the Court during the July 28, 2023 FSC that he could not attend the August 1 trial because he was in Oregon and lacked sufficient funds to attend the trial. Plaintiff did not stipulate to allow Defendant to appear remotely for trial, so the Court acted within its discretion in its denial of Mr. Garcia’s oral request at the FSC to permit him to attend the trial remotely. Mr. Garcia’s failure to make some arrangement to attend the trial in person on August 1 was clearly a mistake on his part. The Court is willing to consider his mistake and his neglect in failing to make such arrangements to be excusable, provided Mr. Garcia satisfies the following conditions:

1. Mr. Garcia shall be sworn as a witness at the hearing on this motion and explain to the satisfaction of the Court how he had sufficient funds to travel to Torrance California by September 14 but was unable to travel to Inglewood on August 1, 2023 to attend trial;

2. Mr. Garcia shall specify a date during the week of November 20 (before Thanksgiving) or November 28-December 1 when he could attend in person a trial commencing at 10:30 a.m. in Inglewood;

3. Mr. Garcia shall not seek to change his previous stipulation to have a court trial rather than a jury trial of this matter;

4. Mr. Garcia shall email to Plaintiff’s counsel copies of any exhibits he intends to use for the upcoming trial no later than 5 calendar days before that trial date; and

5. Mr. Garcia shall agree to pay to Mr. Christy the amount the Court determines to be the reasonable attorney’s fees and costs incurred by Mr. Christy’s counsel for the August 1 trial and the post-trial filings including Plaintiff’s opposition to this Motion. That amount shall be paid before the trial commences.