Bank of America NA vs John E Lewis

Case Number

22CV00974

Case Type

Hearing Date / Time

Fri, 01/10/2025 - 10:00

Nature of Proceedings

Vacate Dismissal and Enter Judgment

Tentative Ruling

For all reasons discussed herein, the hearing on the motion of plaintiff to vacate dismissal and enter judgment under the terms of a stipulated settlement is continued to February 21, 2025. On or before February 7, 2024, plaintiff shall either file a new proof of service demonstrating sufficient and effective service of the present motion and all related documents further described herein on defendant, or shall file and serve additional papers demonstrating, with reasoned factual and legal argument in accordance with this ruling, why service on defendant of the motion and related documents described herein was proper, compliant, or effective.

Background:

On March 11, 2022, plaintiff Bank of America, N.A. (BOA) filed a complaint alleging one cause of action for common counts against defendant John E. Lewis (Lewis). As alleged in the complaint, Lewis applied for and received a credit account (the account) owned and administered by BOA, which Lewis used to acquire goods and services, among other things, in accordance with a customer agreement (the agreement) which governs the use of the account. (Compl., ¶ CC-4(a).) Lewis breached the agreement by failing to make required periodic payments. (Id. at ¶ CC-4(b).) The account was subsequently charged-off, and the amount of $4,283.63 is owed, due, and payable to BOA. The current balance on the Account owed, due, and payable to BOA is $4,283.63, inclusive of payments and credits. (Id. at ¶¶ CC-2 & CC-4(b)-(c).) Monthly periodic statements for the account, which is not accruing post charge-off interest, have been provided to Lewis, and there are no unresolved billing disputes related to the account. (Id. at ¶ CC-4(c)-(d).)

On March 23, 2022, BOA filed a proof of service of the complaint, summons, and additional documents declaring that copies of these documents were served on Lewis at the following address (which the Court will refer to as the Broadmoor address): 47 Broadmoor Plaza, Apt. 10, Santa Barbara, California, 93105.

On April 8, 2022, Lewis answered the complaint, generally denying its allegations and asserting fourteen affirmative defenses.

Court records reflect that on May 10, 2022, BOA filed an “at issue” memorandum ostensibly signed by its counsel in which BOA requested that a trial of the action be set 90 to 120 days in the future. (May 10, 2022, Memorandum [Richter Decl.], ¶¶ 2-6.) Pursuant to a Minute Order entered on July 8, 2022, the Court scheduled a trial confirmation conference on December 16, 2022.

At the December 16, 2022, trial confirmation conference, at which counsel for the parties were present, the Court set this matter for trial on July 20, 2023. (Dec. 16, 2022, Minute Order.)

Court records further reflect that on July 17, 2023, Daniel S. March (March), who is counsel of record for Lewis in this action and the sole shareholder of Litigation Practice Group, P.C. (LPG), filed a declaration stating that on March 20, 2023, LPG filed as case no. 8:23-bk-10571 (the bankruptcy action), a petition for Chapter 11 bankruptcy. (Jul. 17, 2023, March Decl. at p. 1, ll. 27-28.) March further declared that on May 8, 2023, the court in the bankruptcy action appointed a Chapter 11 trustee (the bankruptcy trustee) to operate, manage, and possess LPG, and that on May 27, 2023, March turned over LPG’s computer server to the bankruptcy trustee. (Id. at p. 1, l. 28-p. 2, l. 3.)

March also stated in his July 17, 2023, declaration that, as a result of the entry of a temporary restraining order and the granting of a preliminary injunction in the bankruptcy action, March and other LPG staff no longer had access to LPG’s client management system, that all correspondence concerning this case would be forwarded to the bankruptcy trustee, that March was no longer receiving notices or other documents concerning this case, and that March was prevented from representing or providing legal services to Lewis in this action, among other things. (Jul. 17, 2023, March Decl. at p. 2, ll. 4-25.) March asserted that he would either be substituted out of this action or would file a motion to withdraw as counsel of record for Lewis. (Id. at p. 3, ll. 3-4.)

On July 20, 2023, the Court entered a Minute Order continuing the trial confirmation conference to August 25, 2023, directing March to file a substitution of attorney, and directing counsel for BOA to ensure that Lewis received a copy of the March declaration filed on July 17, 2023, and described above. (Jul. 20, 2023, Minute Order.)

On July 21, 2023, BOA filed a notice that a trial confirmation conference was scheduled in this matter for August 25, 2023, a copy of which appears to have been served on March, and on Lewis at the Broadmoor address. (Jul. 21, 2023, Notice [proof of service].)

At the August 25, 2023, trial confirmation conference, the Court and counsel for BOA discussed the inability of March to represent Lewis in this action. (Aug. 25, 2023, Minute Order.) Further, the Court authorized counsel for BOA to reach out directly to Lewis regarding this matter, and continued the trial confirmation conference to December 1, 2023. (Ibid.)

On August 28, 2023, BOA filed a notice that a trial confirmation conference was scheduled on December 1, 2023, a copy of which was ostensibly served on Lewis only at the Broadmoor address. (Aug. 28, 2023, Notice [proof of service].)

At the December 1, 2023, trial confirmation conference, counsel for BOA requested that the Court permit the giving of notice in this action directly to Lewis so that Lewis would know when future hearings were set, which the Court granted. (Dec. 1, 2023, Minute Order.) The Court granted permission to BOA to give notice directly to Lewis, and further continued the trial confirmation conference to January 5, 2024. (Ibid.)

On December 6, 2023, BOA filed a notice of the January 5, 2024, trial confirmation conference scheduled by the Court, a copy of which was also ostensibly served on Lewis at the Broadmoor address. (Dec. 6, 2023, Notice [proof of service].)

At the January 5, 2024, trial confirmation conference, counsel for BOA requested the Court’s permission to serve Phoenix Law Group and a Mr. Orozco (Orozco), which counsel identified as law firms or attorneys that counsel believed might be representing Lewis, which the Court granted. (Jan. 5, 2024, Minute Order.) The Court granted BOA permission to serve Phoenix Law Group and Mr. Orozco, and further continued the trial confirmation conference to April 12, 2024. (Ibid.)

On January 5, 2023, BOA filed notice of the April 12, 2024, trial confirmation conference scheduled by the Court, a copy of which was ostensibly served on Israel Orozco (presumably, Orozco) of Israel Orozco Law PC, and Ty Carrs of the Morning Law Group. (Jan. 5, 2023, Notice [proof of service].)

On March 20, 2024, the Court issued notice that the April 12, 2024, trial confirmation conference was rescheduled to April 26, 2024. (Mar. 20, 2024, Court Notice.)

At the April 26, 2024, trial confirmation conference, counsel for BOA informed the Court that the case has settled and that a notice of settlement would be filed. (Apr. 26, 2024, Minute Order.) The Court accordingly ordered the trial confirmation conference off-calendar. (Ibid.)

Also on April 26, 2024, BOA filed a notice of conditional settlement of the entire case, a copy of which was ostensibly served on the Morning Law Group. (Apr. 26, 2024, Notice Of Settlement [proof of service].)

Court records further reflect that on June 3, 2024, BOA filed a Stipulation Agreement (the Stipulation) which is signed only by BOA and ostensibly by Lewis, and a request for dismissal of the complaint, without prejudice. On the same date, the Court entered an order dismissing the action under the conditions stipulated to by the parties, with the Court retaining jurisdiction under Code of Civil Procedure section 664.6. (June 3, 2024, Order On Settlement Agreement and Stipulation.)

On August 30, 2024, BOA filed a notice of intention (the notice of intent) to request entry of judgment under the Stipulation, a copy of which was ostensibly also served on the Morning Law Group, PC. (Aug. 30, 2024, Notice [proof of service].)

On October 1, 2024, BOA filed a motion for an order vacating the dismissal of the action and for entry of judgment under the terms of the Stipulation, which is made on the grounds that Lewis has defaulted under the payment arrangement set forth in the Stipulation. On the same date, BOA filed a memorandum of costs claiming costs in the amount of $403.50. Copies of the present motion and the memorandum of costs were ostensibly served on the Morning Law Group, PC. (See Oct. 1, 2024, Proof of Service; Memorandum of Costs [proof of service].)

Lewis has not filed an opposition or other response to the present motion, or a motion to strike costs claimed by BOA in the memorandum of costs.

Analysis:

There exist procedural problems with the present motion. The Stipulation contemplates that written notice of the present motion will be given to Lewis in accordance with Code of Civil Procedure section 1005, in order to provide Lewis “a right to appear and offer evidence that [Lewis] did not default on the payment plan.” (Stip., ¶ 7.) “The fact that an opposing party has actual knowledge of a pending court proceeding will not excuse the moving party from the requirement of giving the written notice required by statute.” (County of Santa Clara v. Perry (1998) 18 Cal.4th 435, 442.)

Notwithstanding the filing of the bankruptcy action by LPG, March did not file a motion to withdraw as counsel of record for Lewis, nor has Lewis filed a substitution of attorney notifying the Court and BOA that Lewis has substituted either himself or a new legal representative to represent him in this action. Accordingly, March remains counsel of record for Lewis in this matter. Though March remains counsel of record for Lewis, available information and evidence, including the proofs of service filed by BOA, demonstrate that the notice of intent and the present motion were not served on March.

In addition, the Stipulation does not provide for service of notice of the present motion, or any other document filed in support of the present motion, in a manner different from the procedure authorized under California Rules of Court, rule 1.21(a). Though the Court granted BOA permission to serve documents on the Phoenix Law Group and Orozco, the notice of intent and the present motion do not appear to have been served on these persons or firms. Moreover, the Court is unaware of any legal authority which would authorize the substitution of a new legal representative to represent Lewis in this action absent an appropriate request by Lewis or his counsel of record.

It is also unclear to the Court whether service of notice of the present motion on Morning Law Group was proper or effective. Morning Law Group has not been substituted into the action as counsel of record for Lewis notwithstanding that it has ostensibly been served with documents in this litigation as further detailed above. Therefore, the Court is unable to determine in what capacity, if any, Morning Law Group represents Lewis in connection with this litigation.

Furthermore, though the complaint was served on Lewis at the Broadmoor address, Lewis has not, as further discussed above, notified the Court or BOA that he is self-represented nor is the Court able to determine, at this stage of the proceedings, whether the Broadmoor address remains an effective or proper address for service of process on Lewis, or whether service of notice of the present motion at this address is otherwise statutorily compliant or appropriate for reasons more fully discussed above. (See, e.g., Code Civ. Proc., § 1012.)

The same reasoning and analysis apply with respect to service of the memorandum of costs by BOA.

Considering that BOA has not demonstrated, with reasoned factual and legal argument, why it is not required to serve notice of the present motion or memorandum of costs on March, and for all further reasons discussed above, it appears that service of the memorandum of costs and the present motion was insufficient, improper, and ineffective to provide compliant written notice to Lewis of the present proceeding. For these reasons, the Court will continue the hearing on the present motion to February 21, 2025. The Court will further order BOA to, or before February 7, 2024, either file a new proof of service showing sufficient and effective service of the memorandum of costs, notice of intent, and present motion on Lewis, or file and serve additional papers demonstrating, with reasoned factual and legal argument, why service of the memorandum of costs and the present motion on the Morning Law Group is proper and effective.