On 04/15/2015 JOHNNY GALLO filed an Other lawsuit against SARA GHIRUM. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DEBRE K. WEINTRAUB, RANDOLPH M. HAMMOCK and EDWARD B. MORETON. The case status is Other.
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
DEBRE K. WEINTRAUB
RANDOLPH M. HAMMOCK
EDWARD B. MORETON
LOWE & ASSOCIATES P.C.
JOHN SCHLANGER ATTORNEY AT LAW
ZVONICEK PHILIP C. ESQ.
GIBBS GIDEN LOCHER ET AL. LLP
1/12/2018: Proof of Service by 1st Class Mail
1/12/2018: Minute Order
5/1/2018: RETURN ON ATTACHMENT/EXECUTION
12/1/2015: NOTICE OF DEMURRER AND DEMURRER TO PLAINTIFF'S COMPLAINT; ETC.
2/5/2016: Minute Order
4/11/2016: NOTICE OF NON-OPPOSITION TO DEFENDANTS' DEMURRER AND MOTION TO STRIKE TO PLAINTIFF'S FIRST AMENDED COMPLAINT
4/11/2016: NOTICE RE: CONTINUANCE OF HEARING
5/20/2016: CROSS-COMPLAINT FOR: 1. INDEMNITY, ETC
6/9/2016: JOINT STATUS REPORT
8/23/2016: AMENDED NOTICE OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION FROM PLAINTIFF JOHNNY GALLO AND REQUEST FOR MONETARY SANCTIONS
8/23/2016: PROOF OF SERVICE OF SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS
10/12/2016: NOTICE OF MOTION AND MOTION TO HAVE FACTS DEEMED ADMITTED BY PLAINTIFF JOHNNY GALLO RE: REQUESTS FOR ADMISSION (SET TWO) AND REQUEST FOR MONETARY SANCTIONS
11/2/2016: OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION TO CONTINUE HEARING ON DEFENDANTS' MOTION FOR SUMMARY ADJUDICATION; ETC.
11/4/2016: DECLARATION OF PLAINTTIFF JOHNNY GALLO'S IN OPPOSITION TO DEFENDANTS VINCE NGUYEN'S AND GAINEASY, LLC'S MOTION FOR SUMMARY JUDGMENT AND SUMMARY ADJUDICATION
2/14/2017: NOTICE OF MOTION AND MOTION FOR ATTORNEY'S FEES BY GAINEASY, LLC; MEMORANDUM OR POINTS AND AUTHORITIES
4/7/2017: MOTION TO BE RELIEVED AS COUNSEL; MEMORANDUM OF POINTS AND AUTHORITIES; ETC
6/9/2017: REPLY BRIEF IN SUPPORT OF MOTION FOR ATTORNEY'S FEES BY GAINEASY, LLC; SUPPLEMENTAL DECLARATION OF DAVID M. PRAGER
Writ of Execution ((Los Angeles)); Filed by Johnny Gallo (Plaintiff)Read MoreRead Less
Application and Order for Appearance and Examination; Filed by Johnny Gallo (Plaintiff)Read MoreRead Less
Application for Issuance of Writ of Execution, Possession or Sale; Filed by Johnny Gallo (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 44, Edward B. Moreton, Presiding; Hearing on Application for Order for Appearance and Examination - Held - ContinuedRead MoreRead Less
Minute Order ( (Hearing on Application for Order for Appearance and Examinati...)); Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 47, Randolph M. Hammock, Presiding; Hearing on Application for Order for Appearance and ExaminationRead MoreRead Less
Writ issued; Filed by ClerkRead MoreRead Less
Appl for Writ of Execution & Ord; Filed by CreditorRead MoreRead Less
APPLICATION FOR ISSUANCE OF WRIT OF EXECUTION, POSSESSION OR SALERead MoreRead Less
Writ-Other Issued; Filed by CreditorRead MoreRead Less
Proof-Service/Summons; Filed by Johnny Gallo (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 47; (OSC - No Return of Service; OSC Discharged) -Read MoreRead Less
Minute order entered: 2015-09-30 00:00:00; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 47; Case Management Conference - Held - ContinuedRead MoreRead Less
Minute order entered: 2015-07-24 00:00:00; Filed by ClerkRead MoreRead Less
Minute OrderRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
COMPLAINT FOR: 1. CONVERSION; ETCRead MoreRead Less
Complaint; Filed by Johnny Gallo (Plaintiff)Read MoreRead Less
Case Number: BC578735 Hearing Date: December 04, 2019 Dept: 47
Johnny Gallo v. Sara Ghirum, et al.
MOTION TO VACATE JUDGMENT AFTER “UNCONTESTED” TRIAL
MOVING PARTY: Defendant Sara Ghirum
RESPONDING PARTY(S): Plaintiff Johnny Gallo
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
Plaintiff alleged that Defendants unlawfully evicted Plaintiff from this rental unit by changing the locks and took control over his belongings and property. As to Defendant Sara Ghirum, Plaintiff alleged conversion, intentional infliction of emotional distress, and abuse of process.
Defendant Sara Ghirum moves to vacate the judgment against her.
Defendant Sara Ghirum’s motion to vacate judgment after “uncontested” trial is DENIED.
Motion To Vacate Judgment
Defendant’s Evidentiary Objections To Declaration of Johnny Gallo
Nos. A to F: SUSTAINED. These statements are irrelevant to the issues at hand.
Requests for Judicial Notice
Plaintiff’s requests for judicial notice are DENIED. Plaintiff has stated no statutory basis for taking judicial notice of any of these documents, having buried the requests in his memorandum with no separate argument as to why any of the documents are judicially noticeable.
In addition, judicial notice of these documents would not accomplish what Plaintiff seeks to accomplish with his request. Some of the documents are the types of documents that are judicially noticeable, such as the Order Granting Attorney’s Motion to be Relieved as Counsel that was filed in this case, but that would not mean that the Court would “accept their contents as true.” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193.) “When judicial notice is taken of a document, . . . the truthfulness and proper interpretation of the document are disputable.” (Ibid. (citation omitted).) The documents submitted as evidence will be considered along with the declarations and other materials filed in connection with this motion; taking judicial notice of them would not have accomplished anything more than that.
On February 5, 2018, judgment was entered against Defendant Sara Ghirum and in favor of Plaintiff Johnny Gallo after a trial at which Defendant did not appear. Defendant now moves to vacate that judgment pursuant to CCP § 473(d), which provides that the Court “may, . . . on motion of either party after notice to the other party, set aside any void judgment or order.” (CCP § 473(d).)
Defendant argues that the judgment is void because (1) she did not receive notice of the trial until after it took place, and (2) Plaintiff committed both extrinsic and intrinsic fraud.
Lack of Notice
On July 12, 2017, at Plaintiff’s request, the Court continued the trial from July 25, 2017 to January 23, 2018 and ordered Plaintiff to give notice. (Minute Order, 7/12/17.) Defendant does not dispute that Plaintiff did give notice, but Plaintiff did not do so until December 28, 2017, at a time when Defendant was out of the country. (Declaration of Sara Ghirum ¶ 7.) Plaintiff did not return until January 31, 2018 and therefore was not aware of the January 23, 2018 trial date. (Ibid.)
Under CCP § 594(b) – which is relevant here, contrary to Defendant’s arguments in reply – the adverse party must be “served by mail . . . not less than 15 days prior to the date set for trial.” (CCP § 594(b).) The adverse party must be given 15 days’ notice of the trial, and therefore the notice must be mailed at least 20 days before the trial date. (CCP § 594(a) [requiring that “proof . . . be made to the satisfaction of the court that the adverse party has had 15 days’ notice of such trial”]; § 594(b) [noting that the extended time provided in CCP § 1013 does not apply to unlawful detainer actions].)
Here, Plaintiff served the notice of continuance to Defendant’s official mailing address of record on December 28, 2017 – 26 days before the trial date. This satisfies Plaintiff’s notice requirement. Although the Court ordered Plaintiff to give this notice in a July 2017 minute order, Plaintiff was not ordered to do so by a certain date, and therefore Plaintiff had only to comply with the statutorily required amount of notice. Thus, the judgment is not void for failure to give notice.
Defendant alternatively argues, more clearly in her reply, that her failure to appear was due to “extrinsic mistake.” (Reply, at p. 9.)
“‘Extrinsic mistake involves the excusable neglect of a party. [Citation.] When this neglect results in an unjust judgment, without a fair adversary hearing, and the basis for equitable relief is present, this is extrinsic mistake. . . .’” (Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 926 [132 Cal. Rptr. 2d 465].) To set aside a judgment based on extrinsic fraud or extrinsic mistake, the moving party must satisfy three elements: “First, the defaulted party must demonstrate that it has a meritorious case. Secondly, the party seeking to set aside the default must articulate a satisfactory excuse for not presenting a defense to the original action. Lastly, the moving party must demonstrate diligence in seeking to set aside the default once it had been discovered.” (Stiles v. Wallis (1983) 147 Cal. App. 3d 1143, 1147–1148 . . . .)
(Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 290-291 (bold emphasis added).
Here, Defendant has not demonstrated that she has a meritorious case. Defendant has attacked Plaintiff’s evidence proferred at trial, but she has not attempted to demonstrate that her own case is meritorious. A conclusory statement that Defendant “has/had a valid defense on the merits” (Motion, at p. 12) is insufficient.
Nor has Defendant articulated a satisfactory excuse for not presenting a defense to the original action. Defendant’s declaration suggests that she did not exercise diligence in determining the status of the trial date after her attorney withdrew in April 2017. The order granting her attorney’s motion to be relieved as counsel informed Defendant that the next hearing in the case was July 12, 2017 and that the trial was scheduled for July 25, 2017. (Order, 4/28/2017, ¶¶ 7, 9.) If Defendant was unaware of the continuance that was granted on July 12 – at a hearing of which she was informed – then Defendant should have been operating under the assumption that the trial was still scheduled for July 25, 2017. Thus, aside from any failure on Defendant’s part to keep the Court apprised of any dates on which she would not be in the country to receive service, Defendant also could have inquired at any time between April 28, 2017 and July 25, 2017 regarding the trial date. Although Defendant indicates that Plaintiff has threatened and harassed her throughout this period, she has not indicated that she would not have attended the trial had she known about it. Given that she was made aware that a trial date was set when her attorney withdrew, Plaintiff’s alleged behavior should not have prevented Defendant from inquiring to the Court regarding the trial schedule.
Third, Defendant has not shown diligence in seeking to vacate the judgment. Judgment was entered against Defendant on February 5, 2018, and she did not file this motion until October 10, 2019 – a year and eight months later. Defendant indicates that she became aware of the judgment “months” after it was entered, when assets from her bank account were seized. (Ghirum Decl. ¶ 8.) Defendant’s new counsel became representing her in August 2019 (Id. ¶ 9), but Defendant does not indicate why she had not sought to vacate the judgment before that.
Accordingly, Defendant has not shown that the judgment should be vacated because she did not receive notice of the trial date until after the trial.
Extrinsic or Intrinsic Fraud
Defendant also argues that the judgment should be vacated because of Plaintiff’s extrinsic and intrinsic fraud.
For the same reasons discussed above, Defendant has not met the requirements to set aside a judgment for extrinsic fraud, and intrinsic fraud is not a sufficient basis on which to use the Court’s equitable powers to set aside a judgment.
The fraud sufficient to justify equitable relief from a judgment must be extrinsic or collateral to the questions examined or determined. . . . It has been frequently stated that equitable relief from a judgment arising out of a contested action will not be granted merely because it was obtained by perjured testimony or forged documents; that constitutes intrinsic fraud against which defense may be made at the trial. False or perjured testimony is not extrinsic fraud. . . .
(Hammell v. Britton (1941) 19 Cal.2d 72, 82-83 (bold emphasis and underlining added).)
Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so. [Citation.] Such a claim of fraud goes to the merits of the prior proceeding which the moving party should have guarded against at the time.
(Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 926.)
The “evidentiary fraud” that Defendant relies on to support her argument that the judgment should be vacated is of the intrinsic variety: Plaintiff argues that Defendant offered perjured testimony at trial. Any “inconsistencies” (Motion, at p. 9) or untruths in Plaintiff’s testimony, however, do not constitute extrinsic fraud, as they are not “collateral to the questions examined or determined.” (Hammell, supra, Cal.2d at 82.)
Defendant’s statements in her declaration regarding Plaintiff’s threatening and harassing behavior do give the Court pause, and it is possible that behavior of that type that prevents a party from participating in litigation could be considered extrinsic fraud. In general, however, the “strongest examples of extrinsic fraud occur when the aggrieved party is induced not to appear, relying on representations, in the context of a confidential relationship, that his interests will be protected.” (Steven W. v. Matthew S. (1995) 33 Cal.App.4th 1108, 1114.) The concept is broader than that – it can “encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing” (Ibid.) – but ultimately Defendant has not shown excusable neglect to appear and present her defense, as discussed above.
Accordingly, the Court finds that Defendant has not presented an adequate legal, equitable and/or factual reason to vacate the judgment. Therefore, the motion to vacate the judgment is DENIED.
Moving party to give notice, unless waived.
IT IS SO ORDERED.
Dated: December 4, 2019 ___________________________________
Randolph M. Hammock
Judge of the Superior Court
Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org
 Despite this fact, Defendant did not even appear at the trial date of 7/25/17, despite not having notice that it had been continued to 1/23/18. Indeed.