Unspecified Plaintiff v. Montano, et al.

(Santa Monica Courthouse: Dept. I) August 18, 2026 DEPARTMENT I LAW AND MOTION RULINGS If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling.

Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

a JNOV brought by defendants. The motion follows a jury trial in which a divided jury found for plaintiff in the amount of $267,000. (Defendants filed a supplemental brief to ensure that the court knew that doing so did not divest the court of jurisdiction. The court knew that.)

Defendants raise a number of points, most of them in both motions. The first is that there needs to be a new trial because the jury did not find that the Marcus bid was invalid. (The court is assuming that the reader is generally familiar with the history of this case.)

In context, plaintiff was the high bidder at a foreclosure sale. But plaintiff did not intend to live in the home, and so by law the bidding remained open to a higher bid by a qualified buyer, meaning (for purposes of this case) a bid by one who planned on being the owner-occupant. One such alleged bidder was defendant Montano. The jury found, though, that Montano's affidavit that he planned to live in the home was not true and that he acted in concert with the other defendants. There was a second bidder, though: Marcus. He also bid more than did plaintiff and claimed he was going to live in the home. Defendants' theory, then, is that there is no causation because even if Montano's bid was not proper, plaintiff still would have suffered no damage because Marcus would have obtained the property.

Some background. The parties discussed the causation issue, partially in the context of jury instructions. The court wound up giving a modified version of CACI 430. According to defendants, though, the court should have also given the bracketed language in CACI 430, which more closely incorporates the "but for" aspect of causation. Because of that, defendants argue, the jury was never called upon to determine whether the Marcus bid was valid or not; instead the jury (defendants maintain) believed that there could be liability whether or not the Marcus bid was a valid bid.

Plaintiffs for their part, claimed that the Marcus bid was invalid because it did not meet the statutory criteria. Because the Marcus bid was invalid, plaintiffs argue, causation is demonstrated by the jury's finding that the Montano bid was improper. The jury was never asked expressly in the verdict form--to which the parties agreed--whether

the Marcus bid was valid or not. The problem with defendants' theory is that this was an issue that was argued by the parties at trial, and context matters. Plaintiff brought it up in the opening and stated to the jury that the evidence would show that the Marcus bid was also invalid. The court's recollection is that defendants also raised this in the opening, and stated that if the Marcus bid was valid, then there was no damage or harm to plaintiff. The court's recollection is that this issue was also discussed and debated in closings. (The court will verify that. The trial transcripts were recently lodged, but the court has not yet had a chance to review them. If the court's recollection is wrong, that could change the decision in this regard.)

While the name "Marcus" did not appear in the jury instructions, the court believes that the modified CACI 430 instruction, given in light of the arguments of counsel (to which the court does not recall any objection), encompassed the proper definition of causation. The instruction as given stated "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm.

Where two or more independent events occur, each of which may have caused the harm, each can be a substantial factor if it, alone, would have caused the harm irrespective of the other." This language, the court believes, is enough. The Montano bid would not have caused the harm irrespective of the Marcus bid if the Marcus bid was valid because the Marcus bid alone would have caused the harm and the Montano bid would have caused no harm at all. In other words, only if the Marcus bid was invalid could the Montano bid have caused harm.

The court believes that the opening statements, closing arguments, and evidence made it plain that if the Marcus bid was valid, plaintiff could not recover, and that the jury understood the instruction in that fashion. (Otherwise, there would be no need to discuss or debate the Marcus bid at all at the trial.) Accordingly, between that and the fact that the jury verdict form was agreed upon, the court believes that in order to answer the causation question "yes," the jury must have found, and did find, that the Marcus bid was infirm.

Defendants also argue that even if the jury did so find, the Marcus bid was valid as a matter of law, and that there is no evidence that could support a contrary conclusion. This is actually somewhat of a harder question. Plaintiffs' theory is that the Marcus bid was not valid because the required affidavit did not accompany both the notice of intent and the actual bid, and that the bid was submitted by same day courier rather than by mail. As to the latter argument, the court is inclined to find that plaintiffs' theory won't work. The Legislature clarified that the point of the requirement is to have a way to prove using objective means that the bid was timely. Using a third party postal-type service fits the bill. There is proof in the sense of a receipt at the time the packet is turned over to the third party as well as proof of delivery.

That is stronger than a declaration by a process server. Here, Marcus used same day delivery by Federal Express. That is enough. While it is true that the statute at the time did not clearly allow for that type of delivery, the clarifying amendment does. And the court views the clarifying amendment as just that: an amendment to clarify what the Legislature believed was already the law, and as such, it has retroactive effect. And the legislative history supports that interpretation. Even if not clarifying and retroactive, it sheds light on whether there was substantial compliance, to the extent that the doctrine applies.

The affidavit requirement is different. The reason that the affidavit is twice required is because there are two requirements set forth in the statute. A timely notice of intent must be given to the trustee within 15 days of the sale. If there is no timely notice of intent, then even an otherwise appropriate higher bid will not be successful. To be valid, the notice of intent must be "accompanied by an affidavit or declaration" stating the intent to be an owner-occupier. (Civ. Code sec. 2924m(c)(2)(B).)

The second thing that must occur is that the actual bid and money must be received within 45 days of the sale. Again, though, the bid must be "accompanied by an affidavit" that sets forth the bidder's intent to be an owner occupant. (Civ. Code sec. 2924m(c)(4)(A)(ii).) The fact that the Legislature chose to require two affidavits may seem like overkill, but that is the Legislature's province.

The harder question is whether providing one affidavit is "substantial compliance" would be sufficient. First, it is not clear that the doctrine of substantial compliance applies to section 2924m. But even assuming that it does, the court believes that a jury could reasonably find that both affidavits were required--especially given that Marcus did not testify and was not deposed. While the court may (or may not) have come out differently, the court believes that whether this sufficed is a question that could go either way and therefore is not a ground for a JNOV. And, as discussed above, the court views the verdict as a conclusion by the jury that there was not substantial compliance. (The court notes that the jury was instructed as to section 2924m's elements.)

Defendants also argues that the verdict was a compromise verdict. The jury awarded $267,000, which is exactly half of what plaintiff sought in closing argument. Plaintiff introduced an email during trial that suggested a little over $280,000 as a "worst case scenario," but the jury went a bit lower. Defendants have not provided any jury affidavit. The court cannot ignore the math; it is true that the award is half of what plaintiff sought. But the court believes that defendants somewhat misperceive what an improper compromise verdict is.

Many verdicts as to damages reflect a compromise of some nature. Some jurors might think that the number is too low; others that it is higher than the juror would like. It is not improper for the jurors to discuss the matter and arrive at a number that is not the one each juror would have picked if left to that juror's own devices but rather reflects a number with which the jurors can agree is supported by the evidence.

Of course, jurors cannot simply average all of the votes (or at least they cannot agree to do so in advance). But that is not the same as agreeing to vote for a lesser amount than one otherwise might in order to reach a verdict. The court believes that is what happened here. The court agrees that if there were twelve juries of one, there might not be nine of them that would have used this number. But there were not twelve juries of one; there was one jury of twelve. That they met at a number less than some would like but perhaps more than others would think best is not improper so long as the number is not bigger than any juror believed the evidence would support.

Defendants note that one of the jurors who voted for this number did not believe that there was liability. That, however, does not undercut the verdict. A juror who believes that there is no liability must still discuss and vote on damages if nine jurors find liability. The juror that voted no on liability is not obligated to vote "zero" on damages, or at least the court is not aware of any case so holding. That juror can reasonably vote based on the assumption of liability, given that the jury has already voted that way. If that is not the law, then the court believes that CACI needs to change, for that is the only reasonable way to read the CACI instructions.

Defendants also contend that the court erred in excluding the Valenzuela testimony. A bit of discussion is needed. Valenzuela was the person working for the trustee in charge of the foreclosure process. After the events in question, she moved to Nevada. She was not on the witness list. If she was subpoenaed, it is not clear that plaintiffs' counsel ever got the subpoena. The parties met and conferred and agreed on portions of her deposition to be read to the jury. When the court inquired at the start of the trial, both counsel stated that she was not going to testify live as a witness, and thus the deposition testimony could be read. And indeed, if she were going to testify, reading the deposition testimony would not have been proper. The deposition testimony was in fact read to the jury.

Then, later in the trial, Valenzuela appeared live to testify. That apparently surprised plaintiff. During cross examination, plaintiff asked why she was present, and she answered that she was there under subpoena. That was about lunch time, so the jury was excused. The court then discussed the matter with counsel. Under CCP section 1989, an out of state resident is not subject to a California trial subpoena. The court therefore is troubled that defense counsel would serve an obviously invalid subpoena--which is court process--on a third party witness, let alone without telling plaintiff about it. According to defendant, he discussed the matter with counsel for the company for which Valenzuela worked. That attorney apparently stated that she was willing to testify voluntarily, but counsel wanted a subpoena. Defense counsel obliged.

So here is the problem. Of course if Valenzuela was willing to come and testify voluntarily, that is fine. But then she ought to be on the witness list and the court ought not be told during the trial that she was not going to testify and her deposition ought not to have been read to the jury and she ought not to have testified under oath that she was here under compulsion of a court order. When all of that was taken together, the court simply did not credit defense counsel's "oops" explanation. It was an ambush, and it was not proper.

Defense counsel tried to explain away plaintiffs' counsel's argument that had he known she was coming live he would not have spent hours identifying deposition excerpts to read to the jury. Defense counsel's explanation was that one never knows. That is just not credible. For that matter, defendant might have taken ill, or an expert suddenly become unavailable, or another witness refuse to come. Anything can happen. But one does not plan for the "you never know" by spending hours doing a deposition designation.

Or, at a minimum, the court would have expected defense counsel to be up front about it and say that she had agreed to come and testify, but because she lived in Nevada counsel wanted to be safe and then plaintiff's counsel could have decided whether to spend their time doing a just-in-case designation. And, of course, then she would be on the one-page witness list that defense counsel signed.

The bottom line is that it appeared to the court that this was a surprise witness for which there was no basis for surprise. That, coupled with her statement that she was there by subpoena, was enough. Of course, it was possible that she thought she was there due to the subpoena and that if she did not come, she would be in contempt of court. If that is the case, then her lawyer lied to her and defense counsel aided (albeit unknowingly) in the falsehood. Or she well knew that the subpoena was invalid, and she just committed perjury. Either way, the combination of all of that gives the court comfort that its ruling was correct. The court also notes that it offered defendants the opportunity to read other parts of her deposition to the jury if it chose to do so after the court struck her testimony. Defendants declined the offer.

Defendants also suggest that the jury was in error as to mitigation. According to the defense, when plaintiff did not get the property in question, plaintiff used the money that was returned to it to buy another piece of property that turned a profit, and that is mitigation that had to be subtracted. The jury obviously disagreed in that it found no mitigation even though the matter was argued to them. The jury's verdict in this regard is proper. Money is fungible. It is more than reasonable to believe that had plaintiffs been successful in this property, plaintiffs would have bought other property as well. It is at least a question of fact, and the jury's answer will stand.

The court also notes that all of these issues, even were defendants correct, would not result in a JNOV (unless the Marcus bid was valid as a matter of law). At most they might support a new trial. In any event, for the foregoing reasons, the motions are DENIED. Case Number: 24SMCV02574 Hearing Date: August 18, 2026 Dept: I Please call the courtroom after 8 am to obtain a copy of the court's tentative ruling.