Judge: Theresa M. Traber, Case: 23STCV10141, Date: 2024-01-12 Tentative Ruling

Case Number: 23STCV10141    Hearing Date: March 12, 2024    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     March 12, 2024                      JUDGMENT: February 5, 2024

CASE:                         Justin Beimforde, an individual d/b/a Justin Beimforde Real Estate Broker, Inc. v. Kirk Retz

CASE NO.:                 23STCV10141           

MOTION TO SET ASIDE JUDGMENT

MOVING PARTY:               Plaintiff Justin Beimforde, in pro per.

RESPONDING PARTY(S): Defendant Kirk Retz

CASE HISTORY:

·         05/05/23: Complaint filed.

·         02/05/24: Judgment entered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is an action for intentional interference with contractual relations. Plaintiff alleges that Defendant interfered with a series of agreements for Plaintiff to act as agent for the sale of several pieces of real property.

Plaintiff moves to set aside the judgment entered against him.

TENTATIVE RULING:

Plaintiff moves to set aside the judgment entered against him.

At the outset, the Court observes that Plaintiff served this motion by mail on February 15, 2024. Pursuant to Code of Civil Procedure section 1005(b), notice of this motion was due on February 16, 2024, plus five calendar days for service by mail. (Code Civ. Proc. § 1005(b); 1013.) Plaintiff’s motion was therefore untimely served. As Defendant has substantively responded to this motion without objecting to the manner of service, the Court overlooks this deficiency and addresses the motion on its merits.

Plaintiff’s papers consist entirely of recitation of authorities pertaining to Code of Civil Procedure section 473(b)’s discretionary relief provision. This section provides:

The court may, upon any terms as may be just, 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment…was taken.

(Code Civ. Proc. § 473(b).)

Plaintiff offers no application of these authorities to the facts of this case and identifies no mistake, inadvertence, surprise, or excusable neglect on his part that would support relief from the judgment.  Moreover, judgment was entered against Plaintiff based on the Court’s ruling on Defendant’s special motion to strike under Code of Civil Procedure § 425.16, issued on January 12, 2024.  Although there was a question about service of Defendant’s motion, Plaintiff did file an opposition, and the Court considered the opposition even though it was filed late.  The Court’s order granting the motion was grounded on the assessment that all the misconduct alleged to have been committed by Defendant in Plaintiff’s complaint were statements made and actions taken in the course of conduct that were non-actionable because they are absolutely privileged under Civil Code section 47.  (1/12/24 Minute Order, p. 6.)  Because it concluded that   “all interfering conduct alleged by Plaintiff arose in the context of ongoing litigation,” the Court found that “Plaintiff cannot show probability of success on the merits because the conduct on which the action is based is absolutely privileged.”  (Id.)  Given this legal basis for the Court’s judgment, and the absence of any showing that that there was “mistake, inadvertence, surprise or excusable neglect” with respect to Plaintiff’s defense of the special motion to strike, the Court concludes there is no basis to grant the relief requested.

Accordingly, Plaintiff’s Motion to Set Aside the Judgment is DENIED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  March 12, 2024                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.