Jinsong Hu v. Fidelity National Title Company

On October 13, 2025, Plaintiff moved for relief from this Court’s order under Code of Civil Procedure section 473, also requesting leave to amend the complaint. For the reasons the Court will now explain, the Court DENIES Plaintiff’s Motion for Relief from this Court’s Order Denying Reconsideration and DENIES Plaintiff’s request for leave to file a First Amendment Complaint.

Analysis of the Requests for Judicial Notice

At the outset, the Court grants the requests for judicial notice in the Defendant’s Request for Judicial Notice in Support of Defendant’s Opposition to Plaintiff’s Motion for Relief. The Court grants the request for judicial notice of the Order Sustaining Demurrer

to Complaint, entered in this matter on June 18, 2025 (“Minute Order”); the Minute Order denying Plaintiff’s Motion for Reconsideration entered in this matter on October 3, 2025; and Exhibit FJ27 to Plaintiff’s Exhibits filed in this action on June 6, 2026 in support of Plaintiff’s Motion for Reconsideration, on the basis that all are Court records and thus proper subjects for judicial notice. (Evid. Code, § 452, subd. (d) [judicial notice may be taken of “records of... any Court of this state[.]”].)

The Court denies the request for judicial notice of the following in the Defendant’s Request for Judicial Notice in Support of Defendant’s Opposition to Plaintiff’s Motion for Relief because they are irrelevant to the Court’s determination of this Motion: Mortgage between DMJ Home Solutions, LLC and Jinsong Hu, recorded on January 29, 2019, as Document No. 2019014449 of the Official Records of Alameda County Recorder; Commercial Deed of Trust between DMJ Home Solutions, LLC and Triumph Capital Partners, LLC, recorded on April 9, 2019, as Document No. 2019062849 of the Official Records of Alameda County Recorder; Subordination Agreement recorded on February 19, 2020, as Document No. 2020040281 of the Official Records of Alameda County Recorder; and Trustee’s Deed Upon Sale recorded on December 24, 2020, as Document No. 2020363288 of the Official Records of Alameda County Recorder.

Though Defendant’s request for judicial notice of these items is unopposed, the Court denies the request for judicial notice because only relevant material is subject to judicial notice. (See State Comp. Ins. Fund v. ReadyLink Healthcare, Inc. (2020) 50 Cal.App.5th 422 [denying an unopposed request for judicial notice because the materials were not relevant to the determination of the issues].)

Analysis of Motion for Relief from Order Denying Reconsideration

To address a few preliminary issues before discussing the merits of this Motion for Relief under Section 473, Plaintiff’s overly-long Motion for Relief from Order filed October 13, 2025 is in violation of California Rules of Court, rule 3.1113(d) [memorandum should be 15 pages or less except for summary judgment motions] and uses multiple fabricated citations. The statement that “Courts have repeatedly held that a pro se litigant’s lack of legal knowledge constitutes excusable neglect” is patently false. (Plaintiff’s Motion for Relief from Order (“Motion”), p. 17.)

And contrary to what Plaintiff’s Motion states, the statement “a party’s ignorance of the rules of procedure may excuse his failure to take the requisite action” does not appear anywhere in Elston v. City of Turlock (1985) 38 Cal.3d 227 (Motion, pp. 15, 17.) Nor does the statement “[c]ourts are to be particularly vigilant to see that [unrepresented parties] do not lose their right to have their case heard” appear anywhere in Lombardi v. Citizens Nat. Trust & Sav. Bank (1955) 137 Cal.App.2d 206.

Plaintiff’s Motion also later cites Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206 to lend support for the latter proposition, but again, that statement does not appear anywhere in that case. (Motion, p. 17.) If he ever does that again before the undersigned Judge, Plaintiff will suffer sanctions that will sting.

Now Code of Civil Procedure Section 473 (“Section 473”) provides that “[t]he Court may, upon any terms as may be just, relieve a party or the party’s legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party’s mistake, inadvertence, surprise, or excusable neglect.” (Code Civ. Proc., § 473,

subd. (b).) Plaintiff argues that “his failure to seek leave to amend in his opposition to the demurrer was the result of excusable neglect stemming from his pro se status and lack of legal sophistication.” (Motion, p. 4.) Plaintiff states that “[o]nly after the Court’s ruling did Plaintiff realize he needed to pursue a fraud-based theory...prompt[ing] Plaintiff to research whether California law provides a basis for liability that does not depend on the existence of a special relationship. Through this research, Plaintiff discovered the doctrine of aiding and abetting fraud.” (Id. at p. 16.)

Plaintiff’s status as a pro per litigant is not excusable neglect within the meaning of the statute. “[A] self-represented litigant who is not indigent ‘must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.’” (Nuño v. California State University, Bakersfield (2020) 47 Cal.App.5th 799, 814, quoting Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009.) In addition, “in propria persona litigants are not entitled to special exemptions from the California Rules of Court or Code of Civil Procedure.” (Gamet v.

Blanchard (2001) 91 Cal.App.4th 1276, 1284, citing Rappleyea v. Campbell (1994) 8 Cal.4th 975.) Plaintiff seeks leave to amend to plead a new cause of action against Defendant because he was unaware that he could assert that cause of action. “Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.” (A & S Air Conditioning v. John J. Moore Co. (1960) 184 Cal.App.2d 617, 620, internal citations omitted.)

Here, Plaintiff’s motion is not based on an honest mistake of law, but rather on ignorance of the law and failing to fully research all possible claims he had against Defendant before filing a lawsuit. That’s not excusable neglect.

Plaintiff also argues that he “did not fully comprehend the procedural requirements . . . at the time of demurrer hearing.” (Motion, p. 18.) A Court’s failure to provide clear communications about procedure and deadlines can be a basis for relief from an order under Code of Civil Procedure section 473. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284 [“special care should be used to make sure that verbal instructions given in Court and written notices are clear and understandable by a layperson.”].)

Here, Plaintiff does not argue that he should be granted leave to amend due to his failure to adhere to procedural requirements imposed by the Court. Rather, he argues that he should be granted leave to amend to allege a new cause of action because he did not know he could allege that cause of action in the first place. But as explained above, this is not excusable neglect under Code of Civil Procedure section 473.

Moreover, the mandatory relief provisions of Section 473 do not apply here. “The range of attorney conduct for which relief can be granted in the mandatory provision is broader than that in the discretionary provision and includes inexcusable neglect. But the range of adverse litigation results from which relief can be granted is narrower. Mandatory relief only extends to vacating a default which will result in the entry of a default judgment, a default judgment, or an entered dismissal.” (Leader v. Health Industries of America (2001) 89 Cal.App.4th 603, 616.) None of the above apply here. A default in the context of the mandatory provision of Section 473 is a “‘default’ entered by the clerk (or the Court) when a defendant fails to answer a complaint[.]” (English v. IKON Business Solutions, Inc. (2001) 94 Cal.App.4th 130, 143 (English).) A default judgment is

“a judgment entered after the defendant has failed to answer the complaint and the defendant’s default has been entered.” (Ibid.) A dismissal is “the withdrawal of an application for judicial relief by the party seeking such relief, or the removal of the application by a Court.” (Id. at p. 144.) Though English addressed the issue of if summary judgment is a “dismissal” within the meaning of the statute, the Court did note that it had previously held that a dismissal following the sustaining of a demurrer without leave to amend on the grounds that the statute of limitations had run was not a dismissal. (Id. at p. 146, citing Castro v. Sacramento County Fire Prot. Dist. (1996) 47 Cal.App.4th 927.)

Moreover, English establishes that Courts should interpret the term “dismissal” narrowly and construe the “dismissal” to have a similar meaning as “default” and “default judgment,” which both involve a defendant’s failure to answer complaint. (English, at p. 146.)) In light of English’s finding that “it does not follow that by using the word ‘dismissal’ in the mandatory provision of section 473(b), the Legislature intended to encompass every resolution of a case against a plaintiff[,]” the Court cannot find a basis for relief under the mandatory relief provisions of Section 473 here. (Id. at p. 144.) Accordingly, the Court DENIES Plaintiff’s Motion for relief from the Court’s Order Denying Reconsideration of the Court’s Order Sustaining the Demurrer Without Leave to Amend.

Analysis of whether Leave to Amend should be granted in the context of this Motion for Relief from an Order Denying Reconsideration of an Order Sustaining the Demurrer Without Leave to Amend

Where, as here, the Court has sustained a demurrer to a complaint, Plaintiff seeking leave to amend that complaint has the burden of showing “a reasonable possibility that the defect can be cured by amendment.” (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100; see also Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 (“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”)).

Here, in his opposition to the Demurrer, Plaintiff not only did not seek leave to amend but he also did not even try to show in what manner he can amend his Complaint nor how such an amendment would change the legal effect of his deficient pleading.

Moreover, as Judge Hayashi pointed out in her October 3, 2025 Order denying Plaintiff’s Motion for Reconsideration of her Order Sustaining the Demurrer Without Leave to Amend, “Plaintiff has failed to show that his failure to seek leave to amend at the time he opposed the demurrer was due to inadvertence, mistake, or excusable neglect as required by Code of Civil Procedure Section 473.” Minute Order at 2 (Oct. 3, 2025). The same remains true today, as the Court now finds that Plaintiff has still failed to show that his failure to seek leave to amend when opposing the Demurrer was due to inadvertence, mistake, or excusable neglect.

And while Judge Hayahsi, in an abundance of liberality and fairness to Plaintiff, also ruled in her October 3, 2025 Order that she would not make a final determination on whether or not Plaintiff filing a proposed First Amended Complaint would be futile

“[w]ithout seeing the actual proposed Amended Complaint,” Id. at 2, the undersigned Judge now has had the benefit of seeing the actual proposed Amended Complaint. And the Court now rules that filing this proposed Amended Complaint would indeed be futile.

Having carefully reviewed Plaintiff’s proposed Amended Complaint, the Court now finds that it fails to show how its filing would cure the pleading deficiencies that led the Court to sustain the Demurrer because this proposed amendment fails to state facts sufficient to constitute a cause of action for aiding and abetting fraud or for any cause of action. Simply put, filing the proposed amendment would be futile because it does not state any claim.

For instance, to state a cause of action for aiding and abetting fraud, Plaintiff would need to plead facts to show the essential elements of a claim for aiding and abetting fraud: “ “Liability may ... be imposed on one who aids and abets the commission of an intentional tort if the person (a) knows the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so act or (b) gives substantial assistance to the other in accomplishing a tortious result and the person’s own conduct, separately considered, constitutes a breach of duty to the third person.” (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 654.) But here the proposed Amended Complaint fails to plead with specificity:

• any facts showing that Defendant knew that Herrera was defrauding Plaintiff by avoiding any specific obligations,

• let alone facts showing that Defendant gave any specific substantial assistance or encouragement to Herrera to defraud Plaintiff,

• let alone facts showing that Defendant owed Plaintiff any duty.

While the proposed amendment Complaint fails to plead facts sufficient to constitute a cause of action for aiding and abetting fraud, the Court in an abundance of fairness to Plaintiff has also considered whether the proposed amended Complaint pleads facts sufficient to constitute any cause of action. And finds it does not.

So although Plaintiff in this Motion for Relief (from the Order Denying Plaintiff’s Motion for Reconsideration of its Order Sustaining of the Demurrer) does ask for leave to amend, Plaintiff fails to meet his burden of showing in what manner he can amend his pleading and how that amendment will change the legal effect of his pleading in light of the deficiencies identified in the Court’s rulings sustaining the demurrer and denying the motion for reconsideration. (See Goodman v. Kennedy 18 Cal.3d at 349, supra, and Hendy v. Losse (1991) 54 Cal.3d 723, 742.). The proposed amendment still has the same pleading defect because it still fails to state facts sufficient to constitute any cause of action.

As Plaintiff has failed to carry his burden for leave to amend here, the Court in the exercise of its discretion declines to give Plaintiff leave to amend now in the context of this Order Denying Plaintiff’s Motion for Relief from the Court’s Order Denying Plaintiff’s

Motion for Reconsideration of the Court’s Order Sustaining the Demurrer. Plaintiff has had more than enough bites at this apple already. And the Court will not grant Plaintiff leave to commit an act of futility.

Accordingly, Plaintiff’s request for leave to amend is DENIED.

Conclusion and Order

The Court DENIES Plaintiff’s motion for relief from the Court’s Order of October 3, 2025, which denied Plaintiff’s Motion for Reconsideration of the Court’s May 30, 2025 Order Sustaining the Demurrer of Plaintiff’s Complaint without leave to amend.

The Court also DENIES Plaintiff’s motion for leave to file a First Amended Complaint adding a new cause of action for aiding and abetting fraud because the proposed amendment fails to state facts sufficient to constitute any cause of action—and so would be futile.

Moreover the Court ORDERS Defendant Fidelity National Title Company as the prevailing party in this civil action to prepare and file a proposed Judgment in favor of Defendant and against Plaintiff within 20 days of today.

SO ORDERED.

Date: June 12, 2026 Vincent I. Parrett Judge of the Superior Court of California, County of Santa Clara

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