Judge Upinder S. Kalra, Case Number: 22STCV18674, Date: 2023-05-22 Tentative Ruling

RESPONDING PARTY(S): Defendants Moon & Dorsett, PC, Dana Moon, Jeffrey Dorsett & Jeremy Cook

On June 7, 2022, Plaintiff Andrew Milder (“Plaintiff”) filed a complaint against Defendants Moon & Dorsett, PC, Dana Moon, Jeffrey Dorsett & Jeremy Cook (“Defendants.”) The complaint alleges TWO causes of action: (1) Fraud and (2) Breach of Contract.[1] Plaintiff alleges that Defendants failed to notify Plaintiff when the retainer fees exceeded $10,000 and did not provide professional services.

On September 16, 2022, Defendant Jeremy Cook filed a Declaration of Demurring Party in Support of Automatic Extension.

On October 7, 2022, Defendants Moon & Dorsett, PC, and Jeremy Cook filed a Demurrer, which was SUSTAINED, with leave to amend.

On December 28, 2022, Plaintiff filed a First Amended Complaint alleging FOUR Causes of Action.

On January 3, 2023, Plaintiff filed a document labeled “ERRATA Re Filed First Amended Complaint” purporting to add a fifth cause of action.

On January 30, 2023, Defendants filed a Demurrer without a Motion to Strike, which was SUSTAINED, without leave to amend.

A 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 are sort 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;

(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.

When ruling on an application for a new trial, the court sits as an independent trier of fact. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.) The court, therefore, has broad discretion to order new trials, limited only by the obligation to state its reasons for granting a new trial and the existence of substantial evidence in the record to support those reasons. (Id.) In assessing the need for a new trial, the court must rely on its view of the overall record, taking into account such factors, among others, as the nature and seriousness of the alleged misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 211.)

Plaintiff moves for new trial, pursuant to CCP § 657. Plaintiff states that three of the subdivisions of CCP apply: (1) irregularity in the proceedings, (2) newly discovered facts, and (3) error in law.

Each of Plaintiff’s complaints had other causes of action and had facts supporting these other causes of action. This motion is based on the fact that this Court denied the tentative ruling from November 28, 2022, discussed “future amendments.” The tentative stated the following: “The Court offers the following guidance regarding any future amendments.”

Defendants argue that the Plaintiff’s motion is based on allowing future amendments. However, Defendants argue that the Court denied the demurrer based on the statute of limitations, not failure to seek permission to amend his complaint.

The Court finds that none of Plaintiff’s three reasons for new trial have been sufficiently established. First, Plaintiff has failed to demonstrate an irregularity in the proceedings. “An “irregularity in the proceedings” is a catchall phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party “cannot fully present by exceptions taken during the progress of the trial, and which must therefore appear by affidavits.” (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229–1230.) Here, there was no violation of the right of the party. The demurrer was sustained due to the statute of limitations. Second, Plaintiff has not provided any newly discovered evidence. “The moving party must provide a “ ‘ “satisfactory explanation for the failure to produce that evidence at an earlier time.” (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) Lastly, there was no error of law. Here, the ruling provided by this Court determined that the statute of limitations prevented the causes of action. “Under this ground, a trial court may grant a new trial if “its original ruling, as a matter of law, was erroneous.” (Collins v. Sutter Memorial Hospital (2011) 196 Cal.App.4th 1, 17–18.) Thus, Plaintiff has failed to establish how the Court’s sustaining of Defendant’s demurrer was an error in law, such that the original ruling was erroneous.

Therefore, because Plaintiff has failed to establish any of the above reasons as to why a new trial should be permitted, the Motion for New Trial is DENIED.

[1] In section 8 of the complaint, Plaintiff also alleges Breach of fiduciary, malpractice, B&P 17200&17500, CLRA CC 1750, intentinal [sic] & negligent inflic [sic] of emotional distress. In section 9, Plaintiff also alleges unjust enrichment, civil rights violations class action.