Judge: Stephen P. Pfahler, Case: 22CHCV00472, Date: 2022-12-30 Tentative Ruling

Case Number: 22CHCV00472    Hearing Date: December 30, 2022    Dept: F49

Dept. F-49                                              

Date: 12-30-22 (a/f 3-27-23 via 11-16-22 ex parte order)

Case # 22CHCV00472

Trial Date: Not Set

RECONSIDER

MOVING PARTY: Plaintiffs, Yumin Gao, et al.

RESPONDING PARTY: Defendant, Eureka Bell, pro per

RELIEF REQUESTED

Motion for Reconsideration

SUMMARY OF ACTION

On June 27, 2022, plaintiffs Yumin Gao and Miage Zhou filed an unlawful detainer complaint against defendants Eureka Bell. Bell, in pro per, answered the complaint on July 18, 2022.

On August 15, 2022, Defendant failed to appear for the Case Management Conference. The court subsequently set an OSC re: Sanctions for August 30, 2022. When Defendant failed to appear for the OSC re: Sanctions on August 30, 2022, the court struck the answer of Defendant. The clerk entered default the same day. On August 31, 2022, the court entered default judgment declaring the lease forfeited. A writ of possession was also issued the same day and again on September 2, 2022. On November 9, 2022, the court granted Bell relief from forfeiture.

RULING: Denied.

Plaintiffs Yumin Gao and Miage Zhou move for reconsideration of the unopposed November 9, 2022, motion and order providing relief from forfeiture. Plaintiffs move on grounds of lack of service and non-receipt of the $63,000 cashiers check representing the outstanding rent at the time of the hearing.

“A motion for reconsideration may only be brought if the party moving for reconsideration can offer ‘new or different facts, circumstances, or law which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion. (Citations.) A motion for reconsideration will be denied absent a strong showing of diligence.” (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; Forrest v. State Of California Dept. Of Corporations (2007) 150 Cal.App.4th 183, 202 disapproved of and overruled on unrelated grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164, 1172 (footnote 3); New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212–213; Baldwin v. Home Sav. of America. (1997) 59 Cal.App.4th 1192, 1199.) Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v.  AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

A court acts in excess of jurisdiction when it grants a motion to reconsider that is not based upon “new or different facts, circumstances or law.”  (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1499.)  Motions for reconsideration are restricted to circumstances where a party offers the Court some fact or circumstance not previously considered, and some valid reason for not offering it earlier. (Id.) The burden under Section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at trial. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.)

The proof of service of service shows a validly executed proof of service with the correct mailing address for counsel. (Code Civ. Proc., §§ 1013a, 1013b.) While the court accepts the declaration denying receipt of service, even considering the lack of opposition, the court made its ruling on grounds of equity.

The court specifically cited to Code of Civil Procedure section 1179:

The court may relieve a tenant against a forfeiture of a lease or rental agreement, whether written or oral, and whether or not the tenancy has terminated, and restore him or her to his or her former estate or tenancy, in case of hardship, as provided in Section 1174. The court has the discretion to relieve any person against forfeiture on its own motion.

An application for relief against forfeiture may be made at any time prior to restoration of the premises to the landlord. The application may be made by a tenant or subtenant, or a mortgagee of the term, or any person interested in the continuance of the term. It must be made upon petition, setting forth the facts upon which the relief is sought, and be verified by the applicant. … In no case shall the application or motion be granted except on condition that full payment of rent due, or full performance of conditions or covenants stipulated, so far as the same is practicable, be made.

The court specifically relied on the November 4, 2022 filed request for judicial notice representing the mailing of a $63,000 cashiers check to Plaintiffs and mailed on October 17, 2022. The court found no reason to challenge the veracity of the representation at the time of the hearing. The instant motion now presents three declarations and exhibit denying receipt of any check, and actual delivery of the check by the United States Postal Service based on the presented tracking number. [Declarations of Yumin Gao, Miaoge Zhou, and Ehnan Cao.] Plaintiffs present a copy of the USPS website based on the tracking number which states: “USPS has received electronic notification from our Self-Service Kiosk (SSK) in WOODLAND HILLS, CA 91367 on October 17, 2022 to expect your item for mailing.”

It’s not clear from the tracking information whether the parcel was ever actually deposited or delivered. The declarations of Plaintiffs and counsel challenge any representation the parcel was never mailed or delivered.

Plaintiff in a seven court day late opposition cites to Code of Civil Procedure section 663, which addresses statements of decision. Plaintiff challenges the underlying unlawful detainer and jurisdiction of the court itself.

The court finds that the failure to actually present the cashier’s check to Plaintiff constitutes a valid ground for reconsideration of the order in that the basis of the equitable relief was expressly conditioned on compliance with the ex parte order for tender of the back rent, and Code of Civil Procedure section 1179. Plaintiff in opposition offers NO response to the argument regarding the claimed non-mailed, non-received cashier’s check. Notwithstanding the questionable delivery of the check to the United States Postal Service and therefore demonstration of compliance with the order, the court declines to make any evidentiary finding for purposes of ruling on the motion for reconsideration on the written motion and opposition. The court therefore denies the motion for purposes of vacating the prior order barring the forfeiture pending oral argument. The court reserves the right to vacate the relief from forfeiture upon a finding of misrepresentation to the court regarding the purported mailing and presentation of the cashiers check to the Plaintiff.

Even in case of a finding of the delivery of the check, however, as stated in the prior order of the court, the order only restored the parties to a month-to-month tenancy. The relief from forfeiture in NO WAY bars a new, summary action for unlawful detainer, whereby Plaintiffs may seek all rents, including current rents as a result of the month-to-month tenancy. The court declines to otherwise consider any and all arguments regarding a lack of jurisdiction by the court to conduct an unlawful detainer action.

Plaintiffs to give notice.