Judge: Virginia Keeny, Case: 19VECV01130, Date: 2023-01-19 Tentative Ruling
Case Number: 19VECV01130 Hearing Date: January 19, 2023 Dept: W
GARY KURTZ v. JANE UN, ET AL.
defendant’s motion to set aside default
judgment AND FOR PRELIMINARY INJUNCTION
Date of Hearing: January
19, 2023 Trial Date: None set.
Department: W Case
No.: 19VECV01130
Moving Party: Defendant Defendants ABBA Bail Bonds, Inc.; Jane Un; and
International Capital Alliance
Responding Party: Plaintiff Gary Kurtz through assignee
Gotham Bail Bonds, Inc.
BACKGROUND
On August 6, 2019, Plaintiff filed a complaint against ABBA Bail
Bonds, Inc., Jane Un, Ruth Soto, and International Capital Alliance asserting
causes of action for 1) Breach of Written Contract; 2) Common Count – Account
Stated; 3) Quantum Meruit; 4) Breach of Written Contract; 5) Common Count –
Account Stated; and 6) Quantum Meruit.
Causes of Action 1-3: Plaintiff alleges they entered into a
contract to perform legal services for Defendants ABBA Bail Bonds, Inc. and
Jane Un pursuant to a hybrid billing agreement. Plaintiff claims ABBA and Un
breached the contract by failing to make payments as required and their breach
was the proximate cause of damages in the amount no less than $44,030.96,
including interest.
Plaintiff alleges the parties also entered into an agreement for
Plaintiffs to perform legal services for Defendants at a billing rate that was
reduced because of a contingency arrangement. Plaintiff claims they should be
entitled to the reasonable value of services for all work performed, which should
be calculated at the rate of $400 per hour, which amounts to $200,000, plus
interest.
Causes of Action 4-6: Plaintiff alleges they entered into a
contract to perform legal services for all named Defendants pursuant to a
hybrid billing agreement. Plaintiff claims Defendants breached the contract by
failing to make payments as required by the agreement and by unreasonably
failing to accept a settlement in the amount of $30,000.
Defendants’ breach was the proximate cause of damages in the
amount no less than $35,549.93 at the time of filing the complaint; $6,000.00,
with interest of $50 per month since January 2018, for a total of $6850.00, as
of the date of the filing of the complaint in this action for failing to
settle; and approximately $60,000, representing 20% of the value of a partial
settlement of the underlying action whereby Soto received a savings of
approximately $300,000 of a mortgage obligation that was excused. This totals
$102,399.93.
On March 9, 2020, default judgment was entered against Defendants
ABBA Bail Bonds, Inc., Jane Un, Ruth Soto and International Capital Alliance.
Defendants previously filed a motion to set aside the default judgment. On May 23, 2022, this court granted the
motion to set aside brought by Ruth Soto, but denied it as to the three other
defendants. Judgment Debtors did not appeal the May 23, 2022 Order of this
Court. On October 20, 2022, this court
entered an amended judgment just as to those three defendants. This action is currently proceeding only
against Ms. Soto.
On December 13, 2022, the three defaulted defendants filed a new
motion to set aside the default judgment, as well as a motion for preliminary
injunction seeking to enjoin any enforcement as to them until the court
rendered judgment as to the claims against Soto.
[Tentative] Ruling
Defendants Motion to Set Aside Default is DENIED
and the Motion for preliminary injunction is denied.
discussion
I.
MOTION TO SET ASIDE
Defendants move this court to set aside the default and default
judgment on the grounds that the judgments were based on “extrinsic fraud and
extrinsic mistake, as (1) the default judgment was for an incorrect amount
based upon the record before the court, (2) the record shows that Defendants International
Capital Alliance, Inc. and Jane Un were only intended to be secondarily liable
for any attorney fees, and relief from default judgment has been granted to the
primary obligor in the matter, Defendant Ruth Soto; (3) Defendant Abba Bail
Bonds has no connection with Defendant Ruth Soto whatsoever and cannot be
liable for any attorney fees in the Soto cases, and (4) no notice of fee
arbitration was ever provided to Defendant International Capital Alliance, Inc.”
The court agrees with plaintiff that the motion to set aside is
nothing other than a motion for reconsideration. A motion for reconsideration must comply with
C.C.P. Section 1008, which this does not.
It is not brought within the statutory time line (ten days); it is not
based on new or different facts or circumstances or law; and it does not
provide the necessary declaration. A
violation of these rules may be punished as a contempt. C.C.P. §1008(e) expressly states that
compliance with the section is jurisdictional: “This
section specifies the court's jurisdiction with regard to
applications for reconsideration of
its orders and renewals of previous motions, and applies to all
applications to reconsider
any order of a judge or court, or for the renewal of a previous
motion... No application to
reconsider any order or for the renewal of a previous motion may
be considered by any judge or court unless made according to this section.
C.C.P. §1008(e) (emphasis added).
“The party seeking reconsideration must provide both newly
discovered evidence and an
explanation for the failure to have produced such evidence
earlier.” (Robbins v. Los Angeles
Unified School District (1992) 3 Cal.App.4th 313, 317.
Berman v. Health Net, (2000) 80
Cal.App.4th 1359, 1369.) Here, Debtors’ motion is fatally
defective because no explanation is provided as to whether and why any of the
(few) facts in support of the Motion were previously unavailable. The moving
party must provide a ‘satisfactory explanation for the failure to produce that
evidence at an earlier time. (Even Zohar Construction & Remodeling, Inc.
v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833, 189 Cal.Rptr.3d
824, 352 P.3d 391; New York Times Co. v. Superior Court (2005) 135
Cal.App.4th 206, 212”.) Here, the motion
fails to present any such explanation and there is no application detailing prior
applications. C.C.P. §1008(b) requires
that any application seeking relief already previously requested must be supported
by an affidavit disclosing the prior request and the ruling thereon. Plaintiff’s
motion seeks the exact same relief sought in the motion to set aside default judgment
filed on March 9, 2022 (2 years after entry of default judgment), heard on May
11, 2022, and ruled upon on May 23, 2022 by written order. These failures are
fatal to the instant motion.
Because the court lacks jurisdiction to entertain
this fatally defective motion for reconsideration, the Defendants’ Motion to
Set Aside is Denied.
II.
MOTON FOR PRELIMINARY INJUNCTION
Defendants move
the court for an Order Staying the Enforcement of the default judgment entered
against Abba, Un and International Capital Alliance on March 9, 2020 until such
time as Plaintiff Gary Kurtz’s claim against Judgment Debtors’ co-defendant,
Ruth Soto, which is currently pending in before this Court, has been fully and
finally adjudicated. They basically
contend that the judgment amount is incorrect and cannot be determined until
the claims against Soto are adjudicated.
Their position is that their liability was contingent on liability being
established against Soto and so cannot be enforced until judgment is entered
against or in favor of Soto.
The court
disagrees with defendants’ analysis. As
set forth above, the judgment against them is final. Even if the amount is incorrect, or based
upon incorrect facts or legal theories, the judgment stands and cannot be
challenged, except by timely appeal. If
it is ultimately determined that Ms. Soto owes nothing, that finding will not
relieve defendants’ of the separate judgment against them. Of course, if the judgment has already been
collected against Un, Abba, or International Capital Alliance, Soto may be
entitled to a set off against any damages award sought from her. The court agrees that plaintiff is not
entitled to double recovery.