Motion for New Trial
deem Requests for Admission, Set Two, admitted as against Defendant.
The City requests a monetary sanction in the amount of $2,175, which consists of three (3) hours to draft the moving papers, and an anticipated two (2) hours to review the opposition, prepare a reply, and attend the hearing, at $435 per hour. (Thind Decl., ¶¶ 9-11.)
Pursuant to Code of Civil Procedure section 2033.280(c), “[i]t is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated [the] motion.” Because Defendant’s failure to serve a response to the City’s Requests for Admission, Set Two, necessitated the filing of the instant motion, the Court GRANTS a reduced monetary sanction in the amount of $870 against Defendant, to be paid within 30 days. Two (2) hours to draft the moving papers and appear at the hearing are reasonable. To the extent that the City seeks monetary sanctions against Defendant’s counsel, no such request is made in the notice of motion.
The City to give notice.
110 American Express Motion for New Trial x 2 National Bank vs. Nasif Defendants Mahir Nasif and Mega World Builder 25-01471543 Corp. (collectively, “Defendants”) move for new trial of the court’s order granting Plaintiff, American Express National Bank’s motion for summary judgment. The Motion for New Trial is DENIED.
“The right to a new trial is purely statutory, and a motion for a new trial can be granted only on one of the grounds enumerated in the statute. [Citation.]” (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.)
Code of Civil Procedure section 657 sets forth the statutory grounds.
Pursuant to the Amended Notice of Intention to Move for New Trial (“Amended Notice of Intent”), Defendants move for new trial of the judgment entered on May 20, 2026, granting
Plaintiff’s motion for summary judgment, based on nine grounds.
Two of the grounds set forth in the Amended Notice of Intent are not statutory grounds, namely, “[i]mproper orders of the court,” and “[a]buse of discretion by the court.” As these are not statutory grounds for a motion for new trial, they cannot be grounds for granting a motion for new trial. An order granting a new trial is in excess of jurisdiction if it is made on a ground not prescribed by statute, upon a notice of intention that is filed prematurely or too late, or is not served on an adverse party, or if the court purports to grant the motion after expiration of the statutory time for ruling. (Kabran, supra, 2 Cal.5th at pp. 336-337;
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As to the remaining grounds, Defendants only argue and address the grounds for motion for new trial involving accident or surprise that ordinary prudence could not have guarded against (Code Civ. Proc. §657(3)), and error in law (Code Civ. Proc. §657(7)).
“Section 657 by its terms requires the trial court to weigh the evidence and consider the entire record. [Citation.]” (Casella v. Southwest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1159.) “Ordinarily, a trial court has complete discretion in ruling on a motion for a new trial. Its ruling will not be disturbed absent an abuse of discretion. [Citations.]” (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 452.)
As to the ground for a motion for new trial due to accident or surprise that ordinary prudence could not have guarded against, Defendants contend that they were unexpectedly placed in a situation where Mahir Nasif was on a plane and unable to execute his declaration in support of Defendants’ opposition to Plaintiff’s motion for summary judgment on the day the opposition was due to be filed as Mahir Nasif was unexpectedly on a plane on the day that he was to execute the declaration, and Defendants’ counsel, James Benedetto was shocked and surprised when he learned that Mahir Nasif had been on a plane the day that the declaration was due to be filed. Defendants additionally contend that they made it known to the court, in its amended opposition and supplemental declarations, and that Defendants took prompt action by filing the opposition timely and then filing an amended opposition as soon as possible given the circumstances.
“ ‘The terms “accident” and “surprise,” although not strictly synonymous, have, as used in legal practice, substantially the same meaning, as each is used to denote some condition or situation in which a party to a cause is unexpectedly placed, to his injury, without any default or negligence of his own [citation], which ordinary prudence could not have guarded against [citation.]’ [Citations.]” (Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 432.)
“ ‘ “Surprise” as a ground for a new trial denotes some condition or a situation in which a party to an action is unexpectedly placed to his detriment. The condition or situation must have been such that ordinary prudence on the part of the person claiming surprise could not have guarded against and prevented it. Such party must not have been negligent in the circumstances.
[Citation.]’ [Citation.]” (Hata v. Los Angeles County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th 1791, 1806, overruled on other grounds in Quigley v.
Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798.)
A motion for new trial on the ground of accident or surprise “must make a showing of injury, a showing of diligence, and a showing that he did not unduly delay seeking redress.” (Fletcher v. Pierceall (1956) 146 Cal.App.2d 859, 866.)
Here, Defendants submit the Declarations of Mahir Nasif in support of both motions, which provides that Defendants’ counsel informed Defendant Nasif that the opposition to the motion for summary judgment would include a declaration from Nasif; that on February 9, 2026, Nasif and Defendants’ attorney discussed the contents of the declaration to be prepared; that on February 11, 2026, Nasif unexpectedly had to return back to the United States and was on a 16-hour flight from Dubai to Los Angeles; and that as a result, Nasif was unable to communicate with counsel who attempted contact Nasif to execute the declaration discussed on February 9, 2026. (ROA 107, 113, Declarations of Mahir Nasif, ¶¶ 2-7.)
Defendants also submit the Declarations of James Benedetto, counsel for Defendants, which provide the same information as that contained in the Declarations of Mahir Nasif. (ROA 109, 111, Declarations of James Benedetto, ¶¶ 3-8.) Defendants’ counsel also states, “I was shocked and surprised when I was unable to contact Defendant’s President Mahir Nasif to execute his declaration that we had discussed in the February 9, 2026, conversation,” and that “I was shocked and surprised when I learned that Defendant’s President Mahir Nasif when I learned was on a flight on February 9, 2026.” (ROA 109, Declaration of James Benedetto, ¶¶ 9-10.)
Defendants’ counsel also provides that he believes that he used “ordinary prudence in advising Defendant’s President Mahir Nasif on February 9, 2026, that his declaration would be needed to support Defendant’s opposition,” and that he does not “believe ordinary prudence could have prevented this surprising
event that Defendant’s President Mahir Nasif unexpectedly had to board a 16 hour flight.” (Id., ¶¶ 11-12.)
While Defendant Mahir Nasif’s flight on February 11, 2026, which prevented Defendants’ counsel from being able to contact him about the declaration that was to be filed in support of the opposition to the motion for summary judgment may have been unexpected, the inability to timely file of the declaration in support of the opposition to the motion for summary judgment is one which could have been guarded against or prevented. The declarations filed in support of the motion are silent as to whether and why the declaration could not have been obtained on February 9, or February 10. The evidence submitted does not show that Defendants were not negligent under these circumstances. Based on the foregoing, there was no accident or surprise that ordinary prudence could not have guarded against.
As to the ground for a motion for new trial due to error in law (Code Civ. Proc. §657(7), Defendants filed no minutes of the court in support of the motion for the court to consider. However, Plaintiff submitted the Minute Order dated March 3, 2026, granting Plaintiff’s motion for summary judgment, which is at issue. (ROA 130, Declaration of Eric J. Jun, ¶ 2, Ex. A.)
Defendants contend that the Court’s ruling that the date of the breach is not an element of the cause of action is erroneous because breach is an element of Plaintiff’s sole cause of action for breach of contract, and that the Court erroneously concluded that the evidence established that about June 18, 2024, Defendants failed to make payments owed on the account, which supports the allegations in the Complaint because Plaintiff’s declaration in support of the motion for summary judgment states the opposite stating that the last payment made, occurred on June 18, 2024, such that the evidence presented established that no breach could
have occurred on June 18, 2024, because a payment was made on June 18, 2024.
“[A] trial court has no discretion to grant a new trial on the basis of error in law unless its original ruling was erroneous as a matter of law. [Citation.]” (Tun v. Wells Fargo Dealer Services, Inc. (2016) 5 Cal.App.5th 309, 323.)
Initially, as to the contention that the Court erred in stating that the date of breach is not an element of a claim for breach of contract, Defendants cite to no authority for the proposition that the date of breach is an element of a cause of action for breach of contract. (Motion, 7:1-3.) Arguments not supported by authority are waived. (See Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 165 [issues mentioned “without fully or properly briefing them” are waived]; Mission Shores Assn. v.
Pheil (2008) 166 Cal. App. 4th 789, 796 [noting that “every brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived and pass it without consideration. [Citations.]”]; Amato v. Mercury Casualty Co. (1993) 18 Cal.App.4th 1784, 1794 [legal proposition not supported by authority is forfeited].)
Case law provides that “the elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)
The argument that the Court erred in granting summary judgment because breach was not properly at issue as the Complaint did not allege that that Defendants breach occurred at some point after June 18, 2024, is without merit. Defendants concede that the Complaint alleges that Defendants breached the agreement “on or about June 18, 2024,” yet ignores the word, “about.”
(ROA 123, 124, Motions for New Trial, 4:23-25.) The Complaint does not allege an exact date that Defendants breached the agreement as it alleges that the breach occurred “on or about June 18, 2024.” Plaintiff’s declaration in support of the motion states that the last posted payment occurred on June 18, 2024, which indicates that Defendants breached the agreement after June 18, 2024, yet close in time to June 18, 2024, which would be encompassed by the allegation that the Defendants breached the agreement “about June 18, 2024.” (ROA 29, Declaration of Mehdi Touhidi, ¶ 13.) Based on the foregoing, there was no error in law in granting summary judgment in favor of Plaintiff.
Plaintiff to give notice.