Ruling
SURJIT P. SONI VS CARTOGRAPH, INC.
Jul 18, 2024 |
EC063728
Case Number:
EC063728
Hearing Date:
July 18, 2024
Dept:
X
Tentative Ruling
Judge Joel L. Lofton, Department X
HEARING DATE:
July 18, 2024
TRIAL DATE: Disposed (8/16/21)
CASE:
Soni v. Cartograph, Inc.
CASE NO.:
EC063728
MOTION TO SET ASIDE/VACATE JUDGMENT AND STAY OF EXECUTION AND PROCEEDINGS
MOVING PARTY
:
Plaintiff Surjit P. Soni dba The Soni Law Firm
RESPONDING PARTY
:
Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.
SERVICE:
Filed on June 14, 2024
OPPOSITION:
Filed on July 3, 2024
REPLY:
Filed on July 11, 2024
RELIEF REQUESTED
Plaintiff Surjit P. Soni dba The Soni Law Firm seeks an order setting aside and vacating the August 16, 2021 Judgment in this case and all orders issued by Judge Ralph C. Hofer since November 25, 2020.
Plaintiff also requests a stay of execution on the judgment in this case until this motion is ruled upon.
BACKGROUND
On March 18, 2015, Plaintiff
Surjit P. Soni dba The Soni Law Firm (Plaintiff) filed a Complaint against Defendants Cartograph, Inc., Simplelayers, Inc., Timothy Tierney, and DOES 1-10. The Complaint asserted eight causes of action for:
1. Breach of Contract
2. Quantum Meruit
3. Money Had and Received
4. Book Account
5. Fraudulent Misrepresentation
6. Negligent Misrepresentation
7. Fraudulent Inducement to Enter into Contract
8. Breach of Guaranty
On August 16, 2021, this Court entered Judgment in favor of Defendants and awarded attorneys fees and costs in the amount of $334,458.41.
On October 22, 2021, Plaintiff filed an appeal as to the August 16, 2021 Judgment. The matter was finally disposed on August 2, 2023, wherein the Court of Appeal affirmed the August 16, 2021 Judgment.
On June 14, 2024, Plaintiff filed the instant motion to set aside/vacate judgment and stay of execution and proceedings. On July 3, 2024,
Defendants
Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) filed an opposition. On July 11, 2024, Plaintiff filed a reply.
TENTATIVE RULING
Plaintiff Surjit P. Soni dba The Soni Law Firms Motion to Set Aside and Vacate Judgment and Stay of Execution and Proceedings is DENIED.
LEGAL STANDARD
Pursuant to Code of Civil Procedure Section 663a, subdivision (a), A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either: (1) After the decision is rendered and before the entry of judgment&(2) Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest. (Code Civ. Proc., § 663a(a).)
A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting the substantial rights of the party and entitling the party to a different judgment: [¶](1) Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. [¶] (2) A judgment or decree not consistent with or not supported by the special verdict. (Code Civ. Proc., § 663.)
DISCUSSION
Plaintiff moves for an order setting aside and vacating the August 16, 2021 Judgment pursuant to Code of Civil Procedure Section 663a(a)(2). Plaintiff contends all orders issued by Judge Hofer after November 25, 2020 are void and should be vacated pursuant to Code of Civil Procedure Section 170.4, subdivision (c)(1) because Judge Hofer took inconsistent positions with respect to his relationship with Attorney Jeffrey G. Sheldon in sworn declarations and it impacted his impartiality in this present case. Furthermore, Plaintiff contends Judge Hofer refused to recuse himself from this case when Plaintiff brought a Code of Civil Procedure Section 170.6 Preemptory Challenge and Motion to Disqualify in 2020 on the basis that Judge Hofer was presiding over case involving someone who had extensive litigation against his close and personal friend. Moreover, Plaintiff contends only after appeal and affirmance of his rulings on attorney fee and costs motions did Judge Hofer voluntarily recuse himself in the interest of justice pursuant to Code of Civil Procedure Section 170.1, subdivision (a)(6)(A)(i). As such, Plaintiff argues Judge Hofer must be deemed disqualified pursuant to Code of Civil Procedure Section 170.6. Lastly, Plaintiff argues Judge Hofer should not have ruled on the sufficiency of his Statement of Disqualification pursuant to Code of Civil Procedure Section 170.3, subdivision (5)(c)(5).
By contrast, Defendants argue Plaintiff fails to disclose the dispute between him and Attorney Sheldon occurred thirteen (13) years ago. Defendants also argue there is no evidence that Judge Hofer ever discussed Plaintiff with his friend. Similarly, Defendants contend in Judge Hofers order striking Plaintiffs Ex Parte Application seeking disqualification, he stated he had a past and casual relationship with Attorney Sheldon. On the other hand, Defendants contend Judge Hofers minute order recusing himself from the case,
Siguo Su v. Sherry Lin, et. al.
(Case No. 19GDCV00656) on July 28, 2020, states he was a close and personal friend of Jeffrey G. Sheridan and his family, so he appears to be discussing a different person than Attorney Sheldon. Likewise, Defendants assert there is no basis other than pure speculation to assume Judge Hofer recused himself due to a relationship with Attorney Sheldon, let alone create doubt as to his impartiality in handling this case. Moreover, Defendants argue Plaintiffs Ex Parte Application for disqualification raised no grounds for disqualification and was untimely, thus Judge Hofers order striking the application were proper under Code of Civil Procedure Section 170.4, subdivision (b). Additionally, Defendants contend the instant motion is untimely because it was filed outside the fifteen (15) day deadline. Finally, Defendants argue to the extent Plaintiff seeks reconsideration of Judge Hofers 2020 order striking the Ex Parte Application, it fails to comply with Code of Civil Procedure Section 1008.
Here, the Court finds that the instant motion fails on both procedural and substantive grounds discussed more thoroughly below.
First, Plaintiff seeks to set aside and vacate the August 16, 2021 Judgement. However, the Notice of Entry of Judgment was served on Plaintiffs counsel of record on August 25, 2021. (Soni Decl., ¶19n, 19r, Exs. 14, 18.) Thus, Plaintiff had until September 16, 2021 to seek to set aside or vacate the August 16, 2021 Judgment because it would have been fifteen (15) days from the service of the notice of entry. Further, the Court had until December 15, 2021 to move to set aside or vacate the judgment on its own pursuant to Code of Civil Procedure Section 663a, subdivision (b).
Next, the instant motion does not raise any arguments to suggest the August 16, 2021 is based on an incorrect legal conclusion or erroneous judgment inconsistent with the facts of this case. Neither does the motion raise any arguments indicating the judgment is inconsistent with a special verdict. Although Defendants do not make this argument, the case law supporting a motion pursuant to Code of Civil Procedure 663a stand for the proposition that such motion may only be brought on the grounds set forth in Code of Civil Procedure Section 663.
In
Garibotti v. Hinkle
(2015) 243 Cal.App.4th 470, the court held A motion to vacate under section 663 may only be brought when the trial judge draws an incorrect legal conclusion or renders an erroneous judgment upon the facts found by it to exist. (
Garibotti v. Hinkle
(2015) 243 Cal.App.4th 470, 477.) However, [i]n ruling on a motion to vacate the judgment the court cannot in any way change any finding of fact. (
Id.
)
Moreover, Plaintiff cites to no other legal authority that would allow this Court to set aside or vacate the August 16, 2021 and other orders issued by Judge Hofer, let alone on the basis raised in the present motion, i.e., Judge Hofers alleged inconsistent statements concerning his relationship Attorney Sheldon and his voluntarily recusal due to purported impartiality. Code of Civil Procedure 170.4, subdivision (c)(1), states in pertinent part, If a statement of disqualification is filed after a trial or hearing has commenced by the start of voir dire, by the swearing of the first witness or by the submission of a motion for decision, the judge whose impartiality has been questioned may order the trial or hearing to continue, notwithstanding the filing of the statement of disqualification. The issue of disqualification shall be referred to another judge for decision as provided in subdivision (a) of Section 170.3, and if it is determined that the judge is disqualified, all orders and rulings of the judge found to be disqualified made after the filing of the statement shall be vacated. (Code Civ. Proc., § 170.4(c)(1).) Even though Plaintiff cites this statute in support of his contention that Judge Hofers Judgment and orders are void, there is no indication that Plaintiffs Ex Parte Application was filed under the circumstances set forth in Code of Civil Procedure 170.4, subdivision (c)(1).
Last,
assuming arguendo
that Plaintiff was seeking reconsideration of the order to strike his Ex Parte Application for Disqualification on the basis that Judge Hofers inconsistent statements regarding his relationship with Attorney Sheldon warrants disqualification, the motion does not meet the requirements set forth in Code of Civil Procedure Section 1008.
Pursuant to Code of Civil Procedure Section 1008, subdivision (a), [w]hen 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. (Code Civ. Proc., § 1008(a).)¿As it relates to new or different facts, circumstances, or law under Code of Civil Procedure Section 1008, subdivision (a), 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.) Furthermore, facts of which the party seeking reconsideration was aware at the time of the original ruling are not new or different. (
In re Marriage of Herr
(2009) 174 Cal.App.4th 1463, 1468.)¿
In this instant case,
Plaintiff does not appear to set forth new or different facts, or arguing that theres been a change in the law, and such motion would be untimely as it would not have been filed within the ten (10) days required under Code of Civil Procedure Section 1008.
CONCLUSION
Based on the foregoing, Plaintiff Surjit P. Soni dba The Soni Law Firms Motion to Set Aside and Vacate Judgment and Stay of Execution and Proceedings is DENIED.
MOTION TO CORRECT THE JUDGMENT
MOVING PARTY:
Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.
RESPONDING PARTY
: Plaintiff Surjit P. Soni dba The Soni Law Firm
SERVICE:
Filed on June 20, 2024
OPPOSITION:
Filed on July 3, 2024
REPLY:
Filed on July 9, 2024
RELIEF REQUESTED
Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. seek an order correcting the spelling of Plaintiff Surjit P. Sonis name in the final judgment.
BACKGROUND
On March 18, 2015, Plaintiff
Surjit P. Soni dba The Soni Law Firm (Plaintiff) filed a Complaint against Defendants Cartograph, Inc., Simplelayers, Inc., Timothy Tierney, and DOES 1-10. The Complaint asserted eight causes of action for:
1. Breach of Contract
2. Quantum Meruit
3. Money Had and Received
4. Book Account
5. Fraudulent Misrepresentation
6. Negligent Misrepresentation
7. Fraudulent Inducement to Enter into Contract
8. Breach of Guaranty
On August 16, 2021, this Court entered Judgment in favor of Defendants and awarded attorneys fees and costs in the amount of $334,458.41.
On October 22, 2021, Plaintiff filed an appeal as to the August 16, 2021 Judgment. The matter was finally disposed on August 2, 2023, wherein the Court of Appeal affirmed the August 16, 2021 Judgment.
On June 20, 2024,
Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) filed the instant motion to correct the judgment. On July 3, 2024, Plaintiff filed an opposition. On July 9, 2024, Defendants filed a reply.
TENTATIVE RULING
Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.s Motion to Correct the Judgment is GRANTED.
LEGAL STANDARD
Pursuant to Code of Civil Procedure Section 473, subdivision (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. (Code Civ. Proc., § 473(a)(1).)
Similarly, 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, and may, on motion of either party after notice to the other party, set aside any void judgment or order. (Code Civ. Proc., § 473(d).) Essentially, [a] court of general jurisdiction has the power, after final judgment, and regardless of lapse of time, to correct clerical errors or misprisions in its records,
whether made by the clerk, counsel or the court itself
, so that the records will conform to and speak the truth. [Citations.] (
Ames v. Paley
(2001) 89 Cal.App.4th 668, 672.)
DISCUSSION
Here, Defendants contend there is a clerical error in the Final Judgment entered on August 16, 2021. Specifically, Defendants assert the Final Judgment contains a misspelling of Plaintiff
Surjit P. Sonis name in the fourth paragraph on line 17. The fourth paragraph, line 17 spells Plaintiffs first name as Surgit, instead of Surjit. (Weisel Decl., ¶2, Ex. A.)
In opposition, Plaintiff argues correction of the Final Judgment is both unnecessary and a wasted exercise because the judgment is void or voidable as a result of Judge Hofers voluntary self-recusal in the interests of justice. As addressed in the tentative for Plaintiffs Motion to Set Aside and Vacate Judgment, Plaintiff fails to raise arguments pursuant to Code of Civil Procedure Section 663 that supports setting aside or vacating the Final Judgment. Furthermore, Plaintiffs contention that Code of Civil Procedure Section 473, subdivision (d) only relates to errors made by the clerk or the Court is incorrect. As cited in the legal standard section of the tentative, California courts have interpreted Code of Civil Procedure Section 473, subdivision (d) to include errors by legal counsel. Thus, Defendants properly seek relief under Code of Civil Procedure Section 473, subdivision (d) in the instant motion. Lastly, Plaintiff does not refute that his first name is misspelled in the Final Judgment.
CONCLUSION
Based on the foregoing, Defendants Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.s Motion to Correct the Judgment is GRANTED.
MOTION
FOR ATTORNEYS FEES
MOVING PARTY:
Defendants Timothy Tierney and
Simplelayers, Inc. f/k/a Cartograph, Inc.
RESPONDING PARTY
: Plaintiff
Surjit P. Soni dba The Soni Law Firm
SERVICE:
Filed on September 8, 2023
OPPOSITION:
Filed on December 29, 2023
REPLY:
Filed on January 5, 2024
RELIEF
REQUESTED
Defendants Timothy Tierney
and Simplelayers, Inc. f/k/a Cartograph, Inc. seek an order awarding the reasonable
attorneys fees and costs incurred on appeal and post-appeal in the amount of
$109,021.00.
BACKGROUND
On March 18, 2015, Plaintiff
Surjit
P. Soni dba The Soni Law Firm (Plaintiff) filed a Complaint against
Defendants Cartograph, Inc., Simplelayers, Inc., Timothy Tierney, and DOES
1-10. The Complaint asserted eight causes of action for:
1. Breach of Contract
2. Quantum Meruit
3. Money Had and Received
4. Book Account
5. Fraudulent Misrepresentation
6. Negligent Misrepresentation
7. Fraudulent Inducement to Enter
into Contract
8. Breach of Guaranty
On August 16, 2021, this Court entered
Judgment in favor of Defendants and awarded attorneys fees and costs in the
amount of $334,458.41.
On October 22, 2021, Plaintiff filed an
appeal as to the August 16, 2021 Judgment. The matter was finally disposed on
August 2, 2023, wherein the Court of Appeal affirmed the August 16, 2021
Judgment.
On September 8, 2023,
Defendants Timothy Tierney and
Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) filed the instant
motion for attorneys fees. On December 29, 2023, Plaintiff filed an
opposition. On January 5, 2024, Defendants filed a reply.
TENTATIVE RULING
Defendants
Timothy Tierney and Simplelayers, Inc. f/k/a Cartograph, Inc.s Motion
for Attorneys Fees is GRANTED in the amount of $109,021.00.
OBJECTIONS TO EVIDENCE
The
Court OVERRULES
Plaintiffs objections to the declaration of Jessica
Weisel.
LEGAL STANDARD
Neither party to the
arbitration may recover costs or attorney's fees incurred in preparation for or
in the course of the fee arbitration proceeding with the exception of the
filing fee paid pursuant to subdivision (a) of this section.
However, a
court confirming, correcting, or vacating an award under this section may award
to the prevailing party reasonable fees and costs incurred in obtaining
confirmation, correction, or vacation of the award including, if applicable,
fees and costs on appeal
. (Bus. & Prof. Code, § 6203(c).)
DISCUSSION
Defendants Timothy Tierney and
Simplelayers, Inc. f/k/a Cartograph, Inc. (Defendants) seek $109,021.00 in
attorneys fees consisting of $86,946 in fees for litigation or collection
efforts, $13,705.00 in fees for preparing the instant motion, and $9,000.00 in
additional fees for filing a reply to the opposition.
Here, the
parties do not dispute Defendants were the prevailing parties on appeal and are
entitled to attorneys fees and costs. However, Plaintiff contends the Court of
Appeal only awarded Defendants costs on appeal. This argument is irrelevant
because Defendants may also recover reasonable attorneys fees and costs
associated with having to obtain confirmation of the arbitration award
including appellate costs and fees. Defendants done just that by opposing
Plaintiffs appeal of the August 16, 2021 Judgment that confirmed the
arbitration award. Next, Plaintiff contends Defendants cannot recover
attorneys fees because they were represented by
pro bono
counsel. The
California case law does not support such contention. In
Aerotek, Inc. v.
Johnson Group Staffing Company, Inc.
(2020) 54 Cal.App.5th 670, the court
reiterated even attorneys who perform services pro bono may obtain
reasonable attorney fees under a fee-shifting statute. (
Aerotek, Inc. v.
Johnson Group Staffing Company, Inc.
(2020) 54 Cal.App.5th 670, 683.)
Finally, Plaintiff asserts Defendants are seeking recovery at excessive billing
rates where the motion fails to provide adequate descriptions of the work
performed and contain time entries that are blocked billed. As such, Plaintiff
argues a negative lodestar of at least 30 percent should be placed on the
billing rates requested. However, Defendants advance the declaration of their
attorney Jessica Weisel, which attests to the prevailing market rates for
appellate lawyers involving complex litigation issues. (Weisel Decl., ¶¶37-46.)
Additionally, Weisel attests to the number of hours expended by each attorney
and paralegal in this matter in connection to the preparing the response brief
to the second appeal, holding a moot court, preparing for oral argument, and
even engaging in settlement talks. (
Id.
at ¶¶27-35.) Thus, Defendants
describe the type of work that was performed and the associated hours expended
to complete these tasks including preparing the present motion.
CONCLUSION
Based on the foregoing,
Defendants Timothy Tierney and Simplelayers, Inc. f/k/a
Cartograph, Inc.s Motion for Attorneys Fees is GRANTED in the amount of
$109,021.00.
Dated:
July 18, 2024
___________________________________
Joel L. Lofton
Judge of the Superior Court
Preview
45D03-2406-CC-006582 Filed: 6/28/2024 2:29 PM Clerk Lake Superior Court, Civil Division 3 Lake County, Indiana AFFIDAVIT OF DEBT Comes ngyyaf and states: fephiens am o Plaintiff (Name of Affiant) OR X a designated Authorized Representative of Jefferson Capital Systems, LLC (laintifp. (Name of Plaintiff) Jam of adult age and am fully authorized by Plaintiff to make the following representations. | am familiar with the record keeping practices of Plaintiff. The following representations are true according to documents kept in the normal course of Plaintiff's business and/or my personal knowledge. Plaintiff has brought this action within the Statute of Limitations to collect the debt and the Statute of Limitations has not expired: Plaintiff: 0 is the original owner of this debt. OR X has obtained this debt from _SYNCHRONY BANK and the original owner of this debt was SYNCHRONY BANK. Evidence of the debt, as required in Rule 9.2.(A)92), is attached as one or more Exhibits to this Affidavit. BARBARA SWEILIK, Defendant, has an unpaid balance of $3096.07 on (Name of Defendant) account XXXXXXXXXXXX5240 . (last 4 digits of number or id only) That amount is due and owing to Plaintiff. This account was opened on 12/19/2022. The last payment from Defendant was received on 06/04/2023 in the amount of $45.00. The type of account is: X Credit card account (i.e. Visa, Mastercard, Department Store, etc.) List the name of the Company/Store issuing credit card: SYNCHRONY BANK o Account for utilities (i.c. telephone, electric, sewer, etc.) 0 Medical bill account (i.e. doctor, dentist, hospital, etc.) uc Account for services (i.e. attorney fees, mechanic fees, etc.) 0 Judgment issued by a court (a copy of the judgment is required to be attached) o Other: (Please explain) This account balance includes: © Late fees in the amount of $. as of (Month, Day, Year) a Other (Explain 0 Interest at a rate of % beginning on (Month, Day, Year) Plaintiff: 0 is seeking attorney’s fees and additional evidence will be presented to the court prior to entry of judgment on attorney’s fees. TCM-TR9.2-1 Approvedby Division of State Court Administration, Feb. 2011 OR X is not seeking attorney’s fees. Plaintiff believes that defendant is not a minor or an incompetent individual. I swear or affirm under the penalties of perjury that the foregoing representations are true, Dated: SUN 26 2024 Signature of Affiant:_.—~ ae = JUN 26 2024 Nicole Swphens Subscribed and sworn to before me . Witness my hand and official seal. Notary Public: C dan ves /> ae! ptt ANN SAWYER My Commission Expire NOTARY PUBLIC STATE GF COLORADO: MN Il | | i) ANNONA NOTARY iD 20244001592 MYC (ON EXPIRES JANUARY 12, 2028 ee vf a= a TCM-TR9.2-1 Approved by Division of State Court Administration, Feb. 2011