Judge: Virginia Keeny, Case: 23STCV19810, Date: 2025-02-10 Tentative Ruling
Case Number: 23STCV19810 Hearing Date: February 10, 2025 Dept: 45
IH HEEN CHANG v. AEGIS ASSET BACKED SECURITY, LLc, et
al.
MOTION to amend
judgment
Date of Hearing: February
10, 2025 Trial
Date: None Set
Department: 45 Case
No.: 23STCV19810
Complaint Filed: August 18,
2023
Moving Party: Plaintiff
Ih Heen Chang, AKA Bess Chang
Responding Party: Defendant Aegis Asset
Backed Security, LLC erroneously also sued as aka
Aegis Funding, Inc., and Jason Moore
Notice: Improper
- No Notice of Motion
BACKGROUND
On August 18, 2023, Plaintiff Ih Heen Chang, Aka Bess Chang
(“Plaintiff”) filed a complaint against Defendants Aegis Asset Backed Security,
LLC erroneously also sued as aka Aegis Funding, Inc. (“Aegis”), the Grace M.
Chien Trust, Escrow Heights Inc, Grace M. Chien, Jason Moore (“Moore”), Carrie
Patrick, and Does 1 through 25. The complaint alleges (1) breach of contract;
(2) fraud; and (3) breach of fiduciary duties.
On November 8, 2023, Defendants Aegis and Moore (“Defendants”) filed a
demurrer without motion to strike. On
November 20, 2024, the Court sustained Defendants’ demurrer as to all causes of
action with thirty (30) days leave to amend. In the minute order, the Court
stated that it considered Defendant’s late opposition in ruling on the
demurrer. As of December 20, 2024, Plaintiff
had not filed an amended complaint.
On December 23, 2024, Plaintiff filed the
instant motion to Amend Judgment.
On January 21, 2025, Defendants filed their
Opposition.
On January 30, 2025, Plaintiff filed an
Amended Motion to Amend Judgment.
[Tentative] Ruling
1. Plaintiff’s
Motion to Amend Judgment, treated as a Motion for Reconsideration, or in the
alternative, as a Motion for Relief Under CCP § 473, is DENIED.
LEGAL STANDARD
Motion to Amend Judgment
Once a
judgment has been entered, a trial court loses most of its jurisdiction to
modify or set it aside. (See APRI Ins. Co. v. Superior Court (1999) 76
Cal.App.4th 176, 181 [“A court may reconsider its order granting or denying a
motion and may even reconsider or alter its judgment so long as judgment has
not yet been entered. Once judgment has been entered, however, the court may
not reconsider it and loses its unrestricted power to change the judgment. It
may correct judicial error only through certain limited procedures such as
motions for new trial and motions to vacate the judgment.”]. One of the
permitted grounds for amending a judgment is to correct a clerical error. (CCP
§ 473(d) [“The court may, upon motion of the injured party, or its own motion,
correct clerical mistakes in its judgment or orders as entered, so as to
conform to the judgment or order directed . . . .”]; see also Rochin v. Pat
Johnson Mfg. Co. (1998) 67 Cal.App.4th 1228, 1238 [“It is true that a court
has the inherent power to correct clerical error in its records at any time so
as to conform its records to the truth, but it may not amend a judgment to
substantially modify it or materially alter the rights of the parties under its
authority to correct clerical error.”].)
Motion for Reconsideration
Code Civ. Proc. § 1008(a) provides:
When an
application for an order has been made to a judge, or to a court, and refused
in whole or in part, or granted, or granted conditionally, or on terms, any
party affected by the order may, within 10 days after service upon the party of
written notice of entry of the order and based upon new or different facts,
circumstances, or law, make application to the same judge or court that made
the order, to reconsider the matter and modify, amend, or revoke the prior
order. The party making the application
shall state by affidavit what application was made before, when and to what
judge, what order or decisions were made, and what new or different facts, circumstances,
or law are claimed to be shown.
The party seeking reconsideration must
provide not just new evidence or different facts, but a satisfactory
explanation for failure to produce that evidence at an earlier time. (Mink v. Superior Court, 2 Cal.App.4th
1338, 1342 (1992).) Finally, while Code
Civ. Proc. § 1008 prohibits a party from making renewed motions that are not
based on new facts of law it “do[es] not limit a court's ability to reconsider
its previous interim orders on its own motion.” (Le Francois v. Goel
(2005) 35 Cal.4th 1094, 1096–1097.)
Motion for Relief Under CCP
§ 473
California Code of Civil Procedure
section 473 states as follows:
(a)
(1)
The court may, in furtherance of justice, and on any terms as may be proper,
allow a party to amend any pleading or proceeding by adding or striking out the
name of any party, or by correcting a mistake in the name of a party, or a
mistake in any other respect; and may, upon like terms, enlarge the time for
answer or demurrer. The court may likewise, in its discretion, after notice to
the adverse party, allow, upon any terms as may be just, an amendment to any
pleading or proceeding in other particulars; and may upon like terms allow an
answer to be made after the time limited by this code.
(2)
When it appears to the satisfaction of the court that the amendment renders it
necessary, the court may postpone the trial, and may, when the postponement
will by the amendment be rendered necessary, require, as a condition to the
amendment, the payment to the adverse party of any costs as may be just.
(b)
The court may, upon any terms as may be just, relieve a party or his or her
legal representative from a judgment, dismissal, order, or other proceeding
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, dismissal, order, or
proceeding was taken.
...
ANALYSIS
Treating Motion to Amend Judgment as Motion for
Reconsideration or Motion for Relief under CCP § 473
“Absent a
showing of extremely good cause…,” courts are disinclined to treat motions as
being different from the label that counsel attach to their motions. (Passavanti
v. Williams (1990) 225 Cal.App.3d 1602, 1610. But see Sole Energy Co. v.
Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 (trial courts have
discretion to construe a motion as being different from the label).)
A court has
authority to treat a reconsideration motion as a motion from relief under
section 473, subdivision (b). (Austin v. L.A. Unif. School Dist. (2016)
244 Cal.App. 4th 918, 929.)
As an initial matter, the Court finds that Plaintiff’s Motion to Amend
Judgment cannot be treated as such because no judgment has been entered in this
matter. However, upon a motion for reconsideration, “a court may reconsider its
order granting or denying a motion...” (APRI Ins. Co. v. Superior Court
(1999) 76 Cal.App.4th 176, 181.) Further, upon a motion for relief under CCP §
473, a court may also “allow, upon any terms as may be just, an amendment to
any pleading” or “relieve a party or his or her legal representative from a
judgment, dismissal, order, or other proceeding taken against him or her
through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP
§ 473 (a)-(b).)
Plaintiff states as follows in the instant motion, “JUDGE’S MINUTE
ORDER INDICATED THAT I FAILED TO FILE MY OPPOSITION PRIOR TO 9 DAYS UNDER COURT
RULING WHEN I APPEARED IN THE COURT HEARING DATE ON NOV 20,24. I DO APOLOGIZE
FOR MY MISTAKE. I WANT TO PRESENT MY OPPOSITION AND ADD EXTRA TWO MY PREVIOUS
ATTORNEYS PROFESSIONAL EVIDENCES OF DOCUMENTS TO SUPPORT MY THIS COMPLAINT
CASE...” (Motion, p. 1-2.)
To the extent that Plaintiff seeks to present a late opposition to the
demurrer, per the Court’s November 20, 2024, Minute Order ruling on the
Demurrer, the Court exercised its discretion to consider Defendant’s late
opposition. Thus, there is no basis to grant Plaintiff leave to present a late opposition
to the demurrer as her previous late opposition was considered in the Court’s
ruling.
To the extent that Plaintiff seeks to augment her previously filed
opposition to the demurrer with additional evidence, the Court treats the
instant motion as a Motion for Reconsideration or as a Motion for Relief Under
CCP § 473.
Were Plaintiff seeking leave to file an amended complaint after the
30-day deadline, the Court would treat such a request as a Motion for Relief
Under CCP § 473. However, Plaintiff makes no such request.
Thus, as to Plaintiff’s request to augment her previously filed
opposition to the demurrer with additional evidence, the Court will treat
Plaintiff’s Motion to Amend Judgment as a Motion for Reconsideration, or in the
alternative, as a Motion for Relief Under CCP § 473.
Timeliness of Plaintiff’s Amended Motion
On January 30, 2025, Plaintiff filed an Amended Motion to Amend
Judgment. The amended motion does not contain any new argument but seeks to add
new exhibits.
Here, the Court will not consider Plaintiff’s amended motion but will base
its determination on the originally filed motion, due to lack of notice to
Defendants. Thus, the Court finds the amendment untimely and, as such,
precluded from review.
Notice of Motion
The general rule is that notice of
motion must be given when rights of an adverse party might be affected. (St.
Paul Fire & Marine Ins. Co. v. Superior Court (1984) 156 Cal.App.3d 82,
85; Cal. Rules of Court, rule 3.1203(a).)
Generally,
courts may only consider issues or grounds specified in the notice of motion or
supporting documents incorporated by reference in the notice. (Luri v.
Greenwald (2003) 107 Cal.App.4th 1119, 1125; Geary St., L.P. v. Superior
Court (1990) 219 Cal.App.3d 1186, 1199-1200; People v. Am. Sur. Ins. Co.
(1999) 75 Cal.App.4th 719, 726; Carrasco v. Craft (1985) 164 Cal.App.3d
796, 808; Taliaferro v. Riddle (1959) 167 Cal.App.2d 567, 570; Traders'
Credit Corp. v. Superior Court (1931) 111 Cal.App. 663, 665.)
“A notice of
motion must state in the opening paragraph the nature of the order being sought
and the grounds for issuance of the order.” (Cal. Rules of Court, rule
3.1110(a); See also Code Civ. Proc., § 1010.)
Here,
Defendants argue that Plaintiff fails to include a proper notice of motion. While
Plaintiff’s motion does not clearly delineate a notice of motion and a
memorandum of points and authorities, Plaintiff states in the first (and only)
paragraph that Plaintiff seeks to present a late opposition and add additional
evidence to the opposition. This notice is deficient. However, given
Defendants’ opposition which clearly addresses Plaintiff’s argument, Defendants
do not appear to have been prejudiced by Plaintiff's lack of proper notice of
motion. Thus, the Court exercises its discretion to hear the instant motion on
the merits.
Plaintiff’s Motion
Giving the instant Motion its most generous reading as either a Motion
for Reconsideration or a Motion for Relief under CCP § 473, the Court finds
Plaintiff’s Motion deficient of any legal argument or legal authority to
entitle her to the relief sought.
Plaintiff is
not entitled to reconsideration of the Court’s order sustaining Defendants’
demurrer. First, Plaintiff failed to make the application for reconsideration within
10 days after service upon Plaintiff of the order sustaining Defendants’
demurrer. Second, Plaintiff failed to establish new or different facts,
circumstances, or law on which the application is based. Third, Plaintiff did
not state by affidavit what application was made before, when and to what
judge, what order or decisions were made, and what new or different facts,
circumstances, or law are claimed to be shown. Finally, Plaintiff does not
offer a satisfactory explanation for failure to produce the evidence at an
earlier time.
Plaintiff
similarly fails to establish a basis for relief under CCP § 473. Plaintiff does
not provide any facts surrounding the reason for her failure to include the additional
exhibits in her previous opposition. Plaintiff simply states that she
apologizes for her mistake and wants to now present her opposition with two additional
pieces of evidence. Plaintiff fails to establish mistake, inadvertence,
surprise, or excusable neglect. Further, Plaintiff's application for relief is
not accompanied by a copy of the opposition proposed to be filed therein, nor
Plaintiff’s proposed first amended complaint for which the court granted 30
days leave to file, which have since expired.
Overall,
Plaintiff fails to explain how the proffered exhibits would change the Court’s
ruling on the demurrer.
Based on the
foregoing, Plaintiff is not entitled to reconsideration or relief under CCP §
473.
CONCLUSION
Plaintiff’s
Motion to Amend Judgment, treated as a Motion for Reconsideration, or in the
alternative, as a Motion for Relief Under CCP § 473, is DENIED.
Moving party to give notice.