2011-00105815-CU-PO

Daniel E. Gonzalez vs. Chase Home Finance LLC

Nature of Proceeding: Motion for New Trial

Filed By: Gonzalez, Daniel

Plaintiff’s Motion for New Trial is denied.

Plaintiff’s objections to evidence are overruled.

Plaintiff filed two lawsuits naming moving party Naiman as a defendant. Naiman
successfully challenged the suits under the Anti-Slapp provisions of the Code of Civil
Procedure. Plaintiff’s actions were dismissed in their entirety as against Naiman.
Plaintiff appealed both of the Anti-SLAPP Orders, but both appeals were ultimately
dismissed. On December 28, 2012, after prevailing on the two Anti-SLAPP Motions
and the subsequent Motions for Attorney’s Fees, a Judgment for Attorney’s Fees and
Costs Pursuant to CCP 425.16(c) in the amount of $45,633 was entered against
Gonzalez. Gonzalez appealed the judgment and sought a stay of enforcement by
requesting that he need post a bond of only $204. On January 28, 2014, the Court
denied plaintiff’s Motion to Recall Writ of Execution upon posting of a bond.

Pursuant to CCP 659, a party intending to move for new trial shall file with the clerk
and serve upon each adverse party a notice of his or her intention to move for new
trial. The notice is to be served and filed within the time parameters of subdivision(a)
(1) or (2) (either before entry of judgment or 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 entry of judgment, whichever is earlier.)judgment).

Defendant Naiman contends he received insufficient notice of the motion, relying on CCP 1005(b). However, the notice requirements for motions for new trial are specific
to the statutes pertaining to new trial motions (CCP 659-659a) and do not require
compliance with CCP 1005(b). The proof of service on the Notice of Intention to Move
for New Trial states that it was served by mail on February 7, 2014. However, Naiman
states that the motion was emailed to him on March 5, 2014 and that he has not
accepted service by email. The Court need not resolve this issue based on the
following defects in the motion.

The motion is denied as to the January 28, 2014 order. The Court’s January 28, 2014
order is not subject to a new trial motion. That motion was a collateral post judgment
motion, not a motion for an order resulting in a judgment. Gonzalez has presented no
authority that a motion for new trial applies to this post-judgment order.

To the extent this motion seeks reconsideration of the January 28, 2014 order under
CCP 1008, it is denied for failure to present new fact, law or circumstances that were
not available at the time of the hearing. The moving party must offer some fact or
circumstance not previously considered and some valid reason for not offering it
th
earlier. Gilberd v AC Transit (1995) 32 Cal.App.4 1494, 1500.

The motion is also denied as to the underlying judgments on the anti-slapp actions
(Gonzalez I and Gonzalez II) and the judgment for attorneys fees. To the extent that
plaintiff’s moving papers also attack the underlying Anti-SLAPP Orders and Judgment
for Attorney’s Fees and Costs in these cases, the motion for new trial is denied as
untimely and because the notice of motion did not include such requests for relief.

The motion for new trial is untimely as to the underlying judgments on the Anti-SLAPP
motions and motions for attorneys fees. The Order Granting Naiman’s Anti-SLAPP
Motion in Gonzalez I was entered on May 4, 2012, and on August 1, 2012, Gonzalez’
appeal of the Anti-SLAPP Order was dismissed by the Third District. The Order
Granting Naiman’s Anti-SLAPP Motion in Gonzalez II was entered on December 21,
2011, and Gonzalez’ appeal of the Anti-SLAPP Order was ordered finally dismissed on
May 10, 2012. Naiman’s Judgment for Attorney’s Fees and Costs was entered by the
Court on December 31, 2012, and is still on appeal. Motions for new trial must be
brought before entry of judgment or within 15 days of mailing of the notice of entry of
judgment, and in no event later than 180 days from entry of judgment. (CCP 659(a)
(1) and (2). All of the above entry of judgment dates are far more than 180 days from
the bringing of this motion.

No oral argument will be permitted.

The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.