Bank of America NA vs John E Lewis

Case Number

22CV00974

Case Type

Hearing Date / Time

Fri, 02/21/2025 - 10:00

Nature of Proceedings

Motion: Vacate Dismissal and Enter Judgment

Tentative Ruling

For all reasons discussed herein, the motion of plaintiff to vacate dismissal and enter judgment under the terms of a stipulated settlement is denied.

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:

Within the last four years, Lewis applied for and received a credit account (the account) owned and administered by BOA. (Compl., CC-1(a) & CC-4(a).) The account, which Lewis used to acquire goods and services, is governed by a customer agreement (the agreement). (Id. at CC-4(a).) Lewis failed to make periodic payments required by the agreement. (Id. at ¶ CC-4(b).) The account was charged-off, and the amount owed, due, and payable to BOA, inclusive of payments and credits, is $4,283.63. (Id. at ¶¶ CC-2 & CC-4(b)-(c).) Monthly periodic statements for the account have been provided to Lewis, and there are no unresolved billing disputes. (Id. at ¶ CC-4(c)-(d).)

On March 23, 2022, BOA filed a proof of service which shows that the summons and complaint, together with additional documents, were served on Lewis by leaving copies of these documents at, and mailing the copies to, the following address (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 requesting that this matter be set for trial within 90 to 120 days. (May 10, 2022, Memorandum [Richter Decl.], ¶¶ 2-6.) On July 8, 2022, the Court entered a Minute Order setting a trial confirmation conference for December 16, 2022.

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

Court records further reflect that on July 17, 2023, Daniel S. March (March), the sole shareholder of Litigation Practice Group, P.C. (LPG) and counsel of record for Lewis, filed a declaration stating that LPG filed a petition for bankruptcy (the LPG bankruptcy action). (Jul. 17, 2023, March Decl. at p. 1, ll. 27-28.) March further declared that on May 27, 2023, March turned over LPG’s computer server to the bankruptcy trustee appointed by the court in the LPG bankruptcy action. (Id. at p. 1, l. 28-p. 2, l. 3.)

March further stated that, pursuant to a temporary restraining order and preliminary injunction entered the LPG bankruptcy action, all correspondence concerning this case would be forwarded to the bankruptcy trustee, and that March was prevented from representing or providing legal services to Lewis in this action. (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 further described above. (Jul. 20, 2023, Minute Order.)

On July 21, 2023, BOA filed a notice of the trial confirmation conference scheduled in this matter for August 25, 2023, a copy of which was ostensibly 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 March’s inability to represent Lewis in this action. (See Aug. 25, 2023, Minute Order.) The Court continued the trial confirmation conference to December 1, 2023, and authorized counsel for BOA to reach out directly to Lewis. (Ibid.)

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

At the December 1, 2023, trial confirmation conference, counsel for BOA made a request that the Court permit notice to be given directly to Lewis in this action, which the Court granted. (Dec. 1, 2023, Minute Order.) In addition, the Court 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, a copy of which was ostensibly served on Lewis at the Broadmoor address. (Dec. 6, 2023, Notice [proof of service].)

At the January 5, 2024, trial confirmation conference, BOA requested the Court’s permission to serve Phoenix Law Group and Mr. Orozco (Orozco), which BOA identified as law firms or attorneys who might be representing Lewis. (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 a notice of the April 12, 2024, trial confirmation conference, a copy of which was ostensibly served on Israel 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 rescheduled the April 12, 2024, trial confirmation conference to April 26, 2024. (See Mar. 20, 2024, Notice of Resetting Hearing.)

At the April 26, 2024, trial confirmation conference, BOA informed the Court that the case had settled and that a notice of settlement would be filed. (Apr. 26, 2024, Minute Order.) The Court accordingly ordered the trial confirmation conference scheduled for that date off-calendar. (Ibid.) BOA filed a notice of conditional settlement of the entire case on the same date, a copy of which was ostensibly served on the Morning Law Group. (Apr. 26, 2024, Notice Of Settlement [proof of service].)

On June 3, 2024, BOA filed a Stipulation Agreement (the Stipulation) which is executed 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, and 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 pursuant to the Stipulation, a copy of which was ostensibly served on the Morning Law Group. (Aug. 30, 2024, Notice [proof of service].)

On October 1, 2024, BOA filed a motion for an order vacating the dismissal of this action and for entry of judgment under the terms of the Stipulation, together with a memorandum of costs. The motion is brought on the grounds that Lewis defaulted under the payment arrangement set forth in the Stipulation. Copies of the present motion and the memorandum of costs were ostensibly served on the Morning Law Group. (See Oct. 1, 2024, Proof of Service & Memorandum of Costs [proof of service].)

Lewis did not file an opposition or other response to the present motion.

On January 10, 2025, the Court entered a Minute Order adopting the following ruling:

“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, 2025, 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.”

Further, the Court continued the hearing on the motion of BOA to February 21, 2025, and directed BOA to, on or before February 7, 2025, either file a new proof of service demonstrating sufficient and effective service of the present motion on Lewis, or to file and serve additional papers demonstrating, with reasoned factual and legal argument, why service of the motion was proper, compliant, or effective to give notice to Lewis. (Jan. 10, 2025, Minute Order.)

Court records reflect that BOA did not file a new proof of service or any additional papers pursuant to the Court’s January 10, 2025, Minute Order.

Analysis:

As further discussed above and in the January 10, 2025, Minute Order, it remains unclear to the Court whether service of the present motion on Morning Law Group was proper or effective. Moreover, as Morning Law Group has not been substituted into the action as counsel of record for Lewis, the Court is unable to determine whether or not Morning Law Group represents Lewis in connection with this litigation.

The Court also has no record showing that Lewis has notified the Court or BOA that he is self-represented in this action. The Court is also unable to determine whether the Broadmoor address remains an effective or proper address for service of process on Lewis. Therefore, the Court is unable to determine whether service of notice of the present motion at the Broadmoor address is proper or appropriate. (See, e.g., Code Civ. Proc., § 1012.)

For all reasons discussed above and in the January 10, 2025, Minute Order, BOA has failed to show, with reasoned factual and legal argument, why it is not required to serve March, who remains counsel of record for Lewis, with notice of the present motion, or why service of the present motion was sufficient, proper, and effective to provide Lewis with compliant written notice of the present proceeding. For these reasons, the Court will deny the motion.