Mourshaki vs. Rich

(Code Civ. Proc., § 1008(a), emphasis supplied).

Here, Plaintiffs do not provide any new or different facts, law or circumstances warranting reconsideration. Rather, Plaintiffs appear to re-submit the same or similar facts and arguments made previously.

In sum, the motion is DENIED.

Defendants to give notice.

10 Mourshaki vs. Rich Motion for New Trial

The court DENIES Plaintiffs ABRAHAM NASIRI MOURSHAKI and FATEMEH N. MOURSHAKI’s motion for a new trial.

The court entered judgment on 6/29/26, and the court clerk electronically mailed the judgment to the parties on 6/30/26. (ROAs 285, 288.) Thereafter, Plaintiffs timely filed a notice of intention to move for new trial on 7/14/26. (ROA 296.)

Plaintiffs’ notice of intention to move for new trial identified the following grounds as a basis for new trial: (1) Irregularity in the proceedings which prevented Plaintiffs from receiving a fair trial; (2) Accident or surprise which ordinary prudence could not have guarded against; (3) Newly discovered evidence, material to the moving party, which with reasonable diligence could not have been fully presented before entry of judgment; (4) Insufficiency of the evidence to justify the decision; (5) The decision is against law; and (6) Error in law occurring at the proceedings and excepted to by Plaintiffs. (ROA 296.)

Despite the noticed grounds, the memorandum of points and authorities in support of Plaintiffs’ motion for new trial, however, argues only that “the evidentiary record presented to the court was materially incomplete” and that “[s]ignificant documentary evidence, factual explanations, and legal authorities relevant to the issues of causation, the nature of the loss, insurance coverage, and

Defendant’s alleged negligence were not fully presented or adequately developed for the Court’s consideration.” (Mov. Pts. & Auth. at p. 4, lines 2-5; see also id. at p. 6, lines 7-8 [“the Summary Judgment proceedings were conducted upon an incomplete evidentiary record”].)

“Where a party seeks a new trial on the grounds of newly discovered evidence, ‘[t]he essential elements which must be established are (1) that the evidence is newly discovered; (2) that reasonable diligence has been exercised in its discovery and production; and (3) that the evidence is material to the movant’s case.’ [Citation.] ‘The newly discovered evidence must be material in the sense that it is likely to produce a different result.’ ” (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 778–779; see Code Civ. Proc., § 657, subd. 4.)

Plaintiffs argue the evidentiary record upon which the motion for summary judgment was decided was incomplete because it did not include material evidence “concerning the handling of Plaintiffs’ insurance policy, the factual cause of the loss, the California FAIR Plan Association’s denial of coverage, [and] the significance of wildfire-related debris flow following the Silverado Fire.” (Mov. Pts. & Auth. at p. 6, lines 9-11.) The evidence proffered by Plaintiffs however is not newly discovered.

Exhibit 1 appears to consist of Plaintiffs’ California FAIR Plan Insurance Policy the Dwelling Insurance Policy Declarations of which shows a policy period of 5/5/20 to 5/5/21; a Notice of Cancellation of Dwelling Fire Policy showing 9/28/21 as the Effective Date of Cancellation; a copy of a check dated 8/2/21; a screen shot of a purported withdrawal confirmation; a Receipt of First Notice of Loss dated 2/24/22; a Property Loss Notice indicated that the Current Policy Status is listed as Cancelled; and a 3/22/22 Letter confirming that Plaintiffs’ policy was cancelled as of 9/28/21 due to non-payment of premium and that Plaintiffs’ insurance claim was denied because there was no policy in force at the time of the loss on 12/14/21. (ROA 309.)

Exhibit 2 appears to consist of e-mail correspondence between Plaintiff Abraham Mourshaki and Defendant

Jennifer Rich regarding Plaintiffs’ August 2021 payment. (ROA 307.) The correspondence has a date range from 9/15/21 to 3/13/22. (Id.)

Exhibit 3 includes a Notice re Coverage of Flood, Mudslide, and Earth Movement Claims Relating to Recent Wildfires dated 1/26/21; a construction estimate dated 9/22/21; a Contract Proposal dated 5/11/22; an undated Estimate for Mudslide Damage by Camouflage Construction; and a picture of mudslide damage followed by a website link. (ROA 311.)

There is no Exhibit 4 in the Register of Actions. Exhibit 5 appears to consist of pictures from a December 2020 fire; and of pictures from the day after the mudslide. (ROA 313.)

The submitted evidence apparently existed before Plaintiffs filed their initial complaint on 5/30/23. (ROA 2.) There is no indication that it is newly discovered.

Even if the court were to assume Plaintiffs’ proffered evidence constituted “newly discovered evidence,” Plaintiffs failed to show they exercised reasonable diligence in its discovery and production. “Plaintiffs do not dispute that certain documents existed.” (Reply Br. at p.2, line 26.) Plaintiffs also acknowledge their prior counsel failed “to timely present material evidence and legal arguments.” (Reply Br. at p. 3, lines 6-8; see also p. 2, lines 27-28 [significant evidence was not fully presented because of counsel’s procedural failures].)

Additionally, a motion for a new trial based on the first four grounds enumerated in the statute (irregularity in proceedings, jury misconduct, accident or surprise, and new evidence) must be made on affidavits. (Code Civ. Proc., § 658.) A motion based on one of the remaining grounds must be made on the minutes of the court. (Id.; Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1192.) The “minutes of the court” include the records of the proceedings entered by the judge or courtroom clerk, showing what action was taken and the date it was taken, and may also include depositions and exhibits admitted into evidence and the trial transcript. (Id.)

As Defendant Jennifer Rich notes, Plaintiffs filed an untimely Declaration of Abraham Nasiri Mourshaki in support of their motion for new trial. Concerning motions for new trial, the Code of Civil Procedure states, “within 10 days of filing the notice, the moving party shall serve upon all other parties and file any brief and accompanying documents, including affidavits in support of the motion.” (Code Civ. Proc., § 659a.) Although due by 7/24/26, Plaintiffs did not file the supporting declaration until 8/6/26. (ROA 322.)

The court does not consider the untimely papers. The declaration is untimely under section 659a. No extension of time for filing was requested or granted, good cause for an extension was not shown, and any extension of time cannot exceed 10 days. (See Code Civ. Proc., § 659a [“These deadlines may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period not to exceed 10 days.”].)

Thus, Plaintiffs’ first ground (irregularity in proceedings) and second ground (accident or surprise) fail because they must be made on affidavits and there is no timely affidavit filed. Plaintiffs’ third ground (newly discovered evidence) also fails on this basis.

Plaintiffs’ fourth ground (insufficiency of the evidence), fifth ground (decision is against the law) and sixth ground (error in law occurring at the proceedings) must be made on the minutes of the court. There are no minutes supporting the motion for new trial.

Further, Plaintiffs have not provided any legal authority to support their contention, if any, that a new trial should be granted due to irregularity in proceedings, accident or surprise, insufficiency of the evidence, a decision that is against the law, or an error in law occurring at the proceedings and, thus, have waived the contention. (Hope v. California Youth Authority (2005) 134 Cal.App.4th 577, 596, citing Interinsurance Exchange v. Collins (1994) 30 Cal.App.4th 1445, 1448 [contention is waived if not supported by legal authority].)

The motion is DENIED.

Defendant Rich to give notice.

14 Nguyen vs. Motion to Compel Binding Arbitration Mercedes-Benz USA LLC The court GRANTS Defendant MERCEDES-BENZ USA, LLC’s (“MBUSA”) motion to compel Plaintiff PETER NGUYEN to arbitrate his claims against Defendant Mercedes-Benz and staying this action pending completion of the arbitration.

The Arbitration Agreement

A party moving to compel arbitration bears an initial burden of producing “prima facie evidence of a written agreement to arbitrate the controversy.” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165–166.) If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement. (See Gamboa, 72 Cal.App.5th at 165- 166.)

Here, Defendant MBUSA meets its initial prima facie burden by submitting the Motor Vehicle Lease Agreement (the “Lease Agreement”) apparently executed by Plaintiff, which contains the following arbitration provision:

Any claim or dispute, whether in contract, tort or otherwise (including any dispute over the interpretation, scope or validity of this lease, arbitration section or the arbitrability of any issue), between you and us or any of our employees, agent, successors, assigns, or the vehicle distributor, including Mercedes-Benz USA LLC (each a ‘Third-Party Beneficiary’), which arises out of or relates to a credit application, this lease, or any resulting transaction or relationship arising out of this lease (including any such relationship with third parties who do not sign this contract) shall, at the election of either you, us, or a Third-Party Beneficiary, be resolved by a neutral, binding arbitration and not by a court action.

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