Judge William A. Crowfoot, Case Number: 22AHCV00505, Date: 2023-08-04 Tentative Ruling

Judge: William A. Crowfoot, Case: 22AHCV00505, Date: 2023-08-04 Tentative Ruling

This is an unlawful detainer action concerning property located at 312 Whispering Pines Drive in Arcadia, California (“Whispering Pines Property”). Default was entered against defendant Jiangqian Gu (“Defendant”) on October 4, 2022. A clerk’s judgment for possession was granted on October 11, 2022. The Court granted Defendant’s motion to set aside the default judgment and entry of default on June 16, 2023, after Defendant argued that the default was entered due to his “surprise” because his identity was stolen by a business associate, Haiming Wei (“Wei”). Defendant submitted a declaration from Wei purporting to admit to identity theft for purposes of renting the Whispering Pines Property. Defendant also submitted a declaration from an attorney, Yi Shi, who claims to have represented the individual identified in the lease agreement for the Whispering Pines Property, Yucheng Shen (“Shen”).

On June 26, 2023, plaintiff Lan Luo (“Plaintiff”) filed this motion for reconsideration. Plaintiff claims new facts, specifically a witness statement and video from Shen and a statement from Wei contradicting his previous admission of identity theft.

In opposition, Defendant argues that Shen’s statement does not contain “new or different” facts because the statement was received on June 6, 2023. Defendant also argues that Wei’s statement is irrelevant to whether Defendant was “surprised” by the default judgment.

Plaintiff argues on reply that the statement from Shen was received after the deadline to file an opposition to Defendant’s motion and the conflicting statements from Wei shows that an evidentiary hearing is needed to ascertain Wei and Defendant’s credibility.

A non-prevailing party may make a motion to reconsider and enter a different order under the following conditions: (1) brought before the same judge that make the order sought to be reconsidered; (2) made within 10 days after service upon the party of the notice of entry of the order; (3) based on new or different facts, circumstances or law than those before the court at the time of the original ruling; (4) supported by a declaration stating the previous order, by which judge it was made, and the new or different facts, circumstances or law claimed to exist; and (5) the motion must be made and decided before entry of judgment.¿ (CCP § 1008.)¿

The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration. (See CCP § 1008(a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown. (CCP § 1008(a).) Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added].) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

Plaintiff’s co-counsel, Edward C. Ip, states that his office received an email on June 9, 2023, from “Mason Jackson” at jacksonmason930311@gmail.com. The email attaches a “witness statement” and a video of a man who identifies himself as Shen and is holding a statement with an identification card. (Ip Decl., ¶ 2, Ex. A.) The video shows the man signing the document and screenshots of the video are attached as exhibits to Mr. Ip’s declaration. (Ip Decl., ¶ 2, Exs. A-003-005.) In the statement, Shen writes that Defendant signed a rental application for the Whispering Pines Property which was prepared by his assistant, Alita Yu, and directed Shen to bring the rental application to Plaintiff’s agent. Plaintiff also submits an email to Mr. Ip from cloudyrain888@gmail.com dated June 23, 2023; the email’s subject line states: “Haiming Wei”. This email includes several documents written in Chinese and a copy of a card showing a police report incident number and a copy of a receipt from the Alhambra Courthouse. The documents in Chinese are each presented alongside a handwritten note which includes a purported signature from Haiming Wei and the date of June 10, 2023.

Defendant argues that Shen’s statement does not reveal “new” facts under the meaning of the reconsideration statute because it was received on June 6, 2023, and the hearing was held on June 16, 2023. Defendant also argues that it is unlikely that Wei would have emailed Mr. Ip because Mr. Ip is not listed in Plaintiff’s pleadings as co-counsel, and the email does not mention the previous declaration. Defendant further argues that neither statement should be reviewed because neither is signed under penalty of perjury. Defendant also attaches a declaration of Xue Yu, aka Alita Yu, who denies that she ever filled out the rental application for the Whispering Pines Property and claims that the Chinese documents, purportedly from Wei, are “all lies.” (Opp., Yu Decl., ¶¶ 4-6.)

In reply, Plaintiff argues that Shen’s statement could not have been presented at the hearing on June 16, 2023, because his counsel did not realize the significance of the email until June 23, 2023. Mr. Ip states in a supplemental declaration that Shen’s email was sent to the office’s general email account without a case name or number, and his staff did not realize it was connected to this case until the email received on June 23, 2023. (Ip Supp. Decl., ¶ 2.) Plaintiff also erroneously claims that neither Shen nor Wei’s statements need to be made under penalty of perjury because they are “adverse statements.” Plaintiff cites to Evidence Code section 1200, which is inapplicable because it governs hearsay evidence.

The Court agrees with Defendant and does not consider Shen’s statement as presenting “new” facts. Counsel’s inability to recognize the significance of an email received before the hearing does not mean that the email is “new” evidence. The Court also independently notes that the translations of the statements attributed to Wei are not by court-certified translators. Therefore, Wei’s statement is not admissible. (CRC 3.1110, subd. (g).)

And, even if the Court were to reconsider the initial motion to set aside, its decision would not be any different. The contradictory evidence presented by the parties simply create a dispute of fact. Public policy favors disposing of cases on their merits; therefore, any doubts about whether relief from default judgment should be granted must be resolved in favor of the party seeking relief from default. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.)

William A. Crowfoot

Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.