Zhang v. Topline Properties CA6

Filed 2/9/16 Zhang v. Topline Properties CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

YAJUN ZHANG, H041092 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. CV178697)

v.

TOPLINE PROPERTIES, LLC et al.,

Defendants and Respondents.

Plaintiff Yajun Zhang appeals from the superior court’s denial of his Code of Civil 1 Procedure section 473, subdivision (b) motion. His motion sought to vacate the judgments that were entered after demurrers were sustained without leave to amend to his fourth amended complaint. Although he concedes that he was not entitled to discretionary relief, he contends that the trial court erred in denying him mandatory relief because he submitted a sworn affidavit from his attorney. We conclude that Zhang was not eligible for mandatory relief and affirm the order.

1 Subsequent statutory references are to the Code of Civil Procedure.

I. Background Zhang’s fourth amended complaint for negligence, intentional tort, and premises liability was filed in September 2013. In October 2013, defendant Topline Properties LLC (Topline) filed a demurrer to the fourth amended complaint. In November 2013, defendants Yu-hai Yang and Asia Express, Inc. (Asia Express) and defendant Milpitas Square, LLC (Milpitas Square) also filed demurrers to the fourth amended complaint. The demurrers were set for hearings on December 5 and December 10. On November 26, Zhang’s attorney, Peter Chao, filed an eight-page memorandum of points and authorities in opposition to the demurrers. Topline and Milpitas Square filed replies to the opposition. The court heard the demurrers of Topline and Milpitas Square on December 5, 2013 and the demurrers of Yang and Asia Express on December 10. All three matters were submitted at the hearings. On December 24, the court issued an order sustaining the demurrers of Topline and Milpitas Square without leave to amend. On December 27, the court issued an order sustaining the demurrers of Yang and Asia Express without leave to amend. On December 30, 2013, the court entered judgment in favor of Topline and Milpitas Square. On January 8, 2014, the court entered judgment in favor of Yang and Asia Express. In between the hearings on the demurrers and the orders sustaining the demurrers without leave to amend, Zhang filed on December 13, 2013 a request for dismissal of his action without prejudice. Zhang also filed a December 24 motion for a new trial, but the court denied his new trial motion on February 7, 2014. Notice of entry of the December 30, 2013 judgment was mailed to Zhang’s attorney on January 7, 2014. Notice of entry of the January 8, 2014 judgment was mailed to Zhang’s attorney on January 13, 2014. Notice of entry of the order denying Zhang’s new trial motion was mailed to Zhang’s attorney on February 13, 2014. Zhang’s time to appeal from the judgments expired in the middle of March 2014. (Cal. Rules of Court, rules 8.104(a) [60