Judge: Teresa A. Beaudet, Case: BC699631, Date: 2023-08-09 Tentative Ruling

Case Number: BC699631    Hearing Date: February 14, 2024    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

Plaintiff Kate Geller (“Geller”) filed this action on March 26, 2018 against Defendants Strong Arm Group, LLC (“SAG”), Eric Yohan Knipe, and Joseph Feldman (“Feldman”). On August 17, 2020, Geller filed the operative Fourth Amended Complaint, alleging causes of action for (1) breach of settlement agreement and (2) fraud.

On June 27, 2019, SAG filed a Cross-Complaint against Geller. On December 23, 2020, SAG filed a First Amended Cross-Complaint against Geller and Joseph Lewis Feldman. On November 13, 2023, a minute order was entered in this matter providing, inter alia, that “[t]he Court orders Joseph Lewis Feldman and Kate Geller in Amended Cross-Complaint (1st) filed by Strong Arm Group, LLC on 12/23/2020 dismissed without prejudice. as Strong Arm Group, LLC has no legal representation.”

On January 22, 2021, Feldman filed a Cross-Complaint against SAG and Eric Knipe (“Knipe”). Feldman filed the operative Second Amended Cross-Complaint on May 9, 2022, alleging thirteen causes of action.

On December 15, 2023, a Judgment was entered in this matter providing, inter alia, as follows:

“On November 13, 2023, a bench trial in the above matter was held in Department 50 in the Los Angeles Superior Court, the Honorable Rolf M. Treu presiding…The Cross-Complaint by SAG against Kate Geller (“Geller”) was dismissed. The Cross-Complaint by SAG against Joseph Lewis Feldman (“Feldman”) was dismissed.

Based on the evidence provided at trial, the court ruled in favor of Geller against SAG and Knipe) on Geller’s complaint, and in favor of Feldman against Knipe on Feldman’s cross-complaint.

IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that Judgment in the amount of $85,000.00 be hereby entered in favor of Kate Geller and against Strong Arm Group, LLC, a Nevada Limited Liability Company and Eric Knipe aka Knipe Eric Yohan AKA Eric Yohan Von Knipe AKA Eric Von Knipe AKA Eric Y. Knipe AKA Eric K. Yohan AKA Eric V. Knipe AKA Eric Von AKA Erick Knipe AKA Eric Yohan, an individual, jointly and severally on Geller’s claims for (1) Breach of Settlement Agreement, and (2) Fraud. Interest shall accrue on said sum at the rate of ten percent per annum from the date of the entry of this judgment until said judgment is paid. Geller is also entitled to recover her attorneys’ fees and costs, which is subject to a motion.

IT IS HEREBY FURTHER ORDERED, ADJUDGED, AND DECREED that Judgment in the amount of $5,000 be hereby entered in favor of Joseph Lewis Feldman against Eric Knipe. Interest shall accrue on said sum at the rate of ten percent per annum from the date of the entry of this judgment until said judgment is paid in full…”

On January 3, 2024, the Court issued a minute order providing, inter alia, that “[t]he Court signs and files the Judgment December 15, 2023 and is incorporated herein by reference. This minute order is deemed to be the Notice of Entry of Judgment. A copy of this minute order as well as the Judgment are mailed to counsel of record.” 

On January 18, 2024, Knipe filed a “Notice of Intention to Move the Court for an Order Setting a New Trial.”

On January 23, 2024, the Court issued a minute order providing, inter alia, that “[t]he Court is in receipt of Plaintiff’s Notice of Intention to Move the Court for an ORder [sic] Setting a New Trial filed January 18, 2024. Hearing on Motion for New Trial is scheduled for 02/01/24 at 08:30 AM in Department 50 at Stanley Mosk Courthouse. Matter shall be heard before the Honorable Rolf M. Treu, Assigned Judge of the Superior Court…”

On January 26, 2024, Knipe filed a document captioned “Eric Knipe’s Notice of Motions & Hearings & Memorandum of Points & Authorities in Support of His Previously Filed Notice of Intention to Move the Court for an Order Setting a New Trial & to Vacate the Judgment Entered.” On January 29, 2024, Knipe filed a document captioned “Affidavits of Mr[.] Knipe & Mr[.] Altholz Re New Trial and Vacate Judgment Motions,” as well as a document captioned “Eric Knipe’s Documentary Evidence & Request for Judicial Notice…”

On January 31, 2024, Feldman filed an opposition to Knipe’s motion for new trial. In addition, on January 31, 2024, Geller filed an opposition to Knipe’s motion for new trial.

On February 1, 2024, the Court issued a minute order providing, inter alia, as follows:

“[O]n January 26, 2024, Knipe filed a document captioned ‘Eric Knipe’s Notice of Motions & Hearings & Memorandum of Points & Authorities in Support of His Previously Filed Notice of Intention to Move the Court for an Order Setting a New Trial & To Vacate the Judgment Entered.’ The Court notes that 10 days after January 26, 2024 is February 5, 2024. This date is after the February 1, 2024 Hearing on Motion for New Trial. Thus, the Court does not find that any opposing parties have had adequate time to file any opposing briefs and accompanying documents under Code of Civil Procedure section 659a…

In light of the foregoing, the Court continues the hearing on the instant motion to February 14, 2024 at 8:30 a.m. in Dept. 50. Any opposing brief(s) and accompanying documents and any reply brief and accompanying documents shall be filed and served per Code of Civil Procedure section 659a. Hearing on Motion for New Trial is continued to 02/14/24 at 08:30 AM in Department 50 at Stanley Mosk Courthouse.” (February 1, 2024 Minute Order at pp. 3-4.)

On February 5, 2024, Feldman filed a “Supplemental Opposition to Motion of Eric Knipe for New Trial.” 

Discussion

“A motion for new trial is a creature of statute…”  (Neal v. Montgomery Elevator Co. (1992) 7 Cal.App.4th 1194, 1198.) “[A] motion for a new trial can be granted only on one of the grounds enumerated in the statute.” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.) Pursuant to Code of Civil Procedure section 657, “[t]he verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such 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.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

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.)

As an initial matter, in his supplemental opposition, Feldman asserts that “the new trial motion is void because Knipe failed to serve his notice of intent to move for new trial within the statutory time period.” (Suppl. Opp’n at p. 1:5-7.) Feldman cites to Code of Civil Procedure section 659, subdivision (a), which provides as follows:

“(a) 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 or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(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.” (Emphasis added.)

Pursuant to Code of Civil Procedure section 659, subdivision (b), “[t]hat notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.” (Emphasis added.) 

Feldman asserts that “Knipe failed to serve his notice of intent to move for a new trial “within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5’.” (Suppl. Opp’n at p. 2:6-8.) As set forth above, on January 3, 2024, the Court issued a minute order providing, inter alia, that “[t]he Court signs and files the Judgment December 15, 2023 and is incorporated herein by reference. This minute order is deemed to be the Notice of Entry of Judgment. A copy of this minute order as well as the Judgment are mailed to counsel of record.” 

In his supplemental declaration, Feldman’s counsel states that “[w]e had an initial hearing on this matter on February 1, 2024. At that time, I told the court that Mr. Knipe’s proofs of service were false and that I had received no new trial papers from him.” (Suppl. Zemanek Decl., ¶ 2.) In addition, Feldman’s counsel’s January 31, 2024 declaration filed in support of Feldman’s initial January 31, 2024 opposition provides, “Mr. Knipe failed to serve any papers on me. This includes his notice of intent to move for new trial, as well as his declaration and points and authorities. The only reason I became aware of this motion was the clerk’s notice of the February 1, 2024 hearing date, which I received by mail on January 29, 2024.” (Zemanek Decl., ¶ 2.) Feldman asserts that accordingly, “[t]he motion has a fatal jurisdictional defect because Knipe did not timely serve his notice of intent to move for new trial.” (Suppl. Opp’n at p. 4:3-4.)

It does not appear that Knipe filed any reply brief in support of the instant motion. Thus, Knipe does not appear to dispute that his notice of intention to move for a new trial was not served on Feldman.

In addition, Geller filed an opposition to Knipe’s motion for new trial on January 31, 2024.  In her opposition, Geller asserts that “Mr. Knipe’s motion for new trial should be denied outright because Mr. Knipe did not properly serve the relevant documents, including the motion for new trial.” (Opp’n at p. 2:11-12.) Geller’s counsel states that “Mr. Knipe failed to serve any papers on me and Lyon Legal. This includes the Motion for New Trial and the Notice of Intent to Move for New Trial.” (Perez Decl., ¶ 2.) As discussed, it does not appear that Knipe filed any reply brief in support of the motion. Thus, Knipe does not dispute this point.

Feldman also asserts that “Knipe failed to serve his brief and accompanying documents within ten days after he filed the notice of intent to move for a new trial.” (Suppl. Opp’n at p. 2:13-14.) As set forth above, on January 18, 2024, Knipe filed a “Notice of Intention to Move the Court for an Order Setting a New Trial.” Pursuant to Code of Civil Procedure section 659a, “[w]ithin 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion.” Ten days after January 18, 2024 is January 28, 2024. Here, Knipe’s “Notice of Motions & Hearings & Memorandum of Points & Authorities in Support of His Previously Filed Notice of Intention to Move the Court for an Order Setting a New Trial & to Vacate the Judgment Entered” was filed on January 26, 2024. However, Knipe’s “Affidavits of Mr[.] Knipe & Mr[.] Altholz Re New Trial and Vacate Judgment Motions” and Knipe’s “Documentary Evidence & Request for Judicial Notice” were filed on January 29, 2024. As discussed, Knipe did not file any reply in support of the motion, and thus does not appear to dispute that his moving papers were not all timely filed and served.  

Based on the foregoing, the Court denies Knipe’s motion for new trial.

Conclusion

In light of the foregoing, the Court denies Knipe’s motion for new trial.

Feldman is ordered to provide notice of this ruling.

DATED:  February 14, 2024                          ________________________________

Hon. Rolf M. Treu

Judge, Los Angeles Superior Court