Filed 11/26/13 Lathen v. Daniel CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


CRAIG S. LATHEN,                                                     B240414

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC439232)
         v.

NATHAN DANIEL,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Amy D. Hogue, Judge. Affirmed.



         B. Kwaku Duren & Associates and B. Kwaku Duren, for Plaintiff and Appellant.



         Law Office of Joseph W. Singleton and Joseph W. Singleton, for Defendant and
Respondent.




                                       __________________________
       Plaintiff and appellant Craig S. Lathen appeals from the March 23, 2012, order
denying his motion for new trial made on the grounds of newly discovered evidence. He
contends it was an abuse of discretion to (1) deny Lathen’s ex parte application for an
extension of time to file the requisite supporting affidavit and (2) deny the new trial
motion on the grounds that Lathen did not use reasonable diligence to discover the new
evidence. We affirm.

                  FACTUAL AND PROCEDURAL BACKGROUND

       Appellant Lathen and respondent Daniel were next door neighbors when a dispute
over barking dogs generated the first of at least five lawsuits between them.1 The first

1      These cases include:

       •BC337962 Daniel filed BC337962 seeking damages for terrorist threats,
       intentional infliction of emotional harm and various Unruh act violations arising
       out of statements made by the Lathens in the argument over their barking dogs.
       Case No. BC337962 ended in a default judgment against the Lathens, which we
       affirmed as modified in case No. B221584.
       •BC375880 The Lathens filed case No. BC375880 to set aside the default
       judgment entered against them in case No. BC337962. The parties stipulated to
       consolidating case No. BC375880 with case No. BC337962. After the trial court
       vacated the default judgment in case No. BC337962, but before we rendered our
       opinion in the appeal of that case, the Lathens dismissed with prejudice case
       No. BC375880.
       •BC391091 While the prior appeal in case No. BC337962 was pending, the
       Lathens filed case No. BC391091, a quiet title action, which was deemed related
       to case No. BC337962. The trial court granted Daniel judgment on the pleadings
       and dismissed the complaint in case No. BC391091. Notice of appeal was filed on
       July 14, 2010; but the appeal was dismissed and remittitur issued on December 16,
       2010.
       •BC439232 The case that is the subject of the present appeal.
       •10-U-06173 Daniel filed case No. 10-U-06173, an unlawful detainer action
       against the Lathens. The trial court deemed case No. 10-U-06173 related to case
       No. BC391091, the quiet title action in which Daniel obtained judgment on the
       pleadings.

       In the text we refer to both superior court and Court of Appeal case numbers, as
       the context requires.

                                              2
lawsuit (trial court case No. BC337962), resulted in two prior appeals (case
Nos. B203799 and B221584), and was concluded after the second appeal. We briefly
summarize the facts, which are set forth in greater detail in our prior opinions.

Case No. BC337962

       Lathen and his wife responded to Daniel’s complaints about their barking dogs
with verbal threats invoking Daniel’s race and religion. Daniel filed case No. BC337962,
against the Lathens seeking damages for terrorist threats, intentional infliction of
emotional harm and Unruh Act violations. In February 2006, a $407,423.58 default
judgment was entered against the Lathens. In July 2007, Daniel purchased the Lathens’
home for $562,500 in a sheriff’s sale to enforce that money judgment.2 In August 2007,
the County of Los Angeles issued a $75,000 check to Lathen in payment of his
homestead exemption. Lathen did not cash the check. Instead, he gave it to his attorney,
who returned it to Daniel’s attorney. Daniel never cashed that check.
       In August 2007, two months after the sheriff’s sale, the Lathens filed a motion to
vacate the default judgment, which was granted on the grounds that the judgment
exceeded the $87,423.58 in damages alleged in the complaint (a prior motion to vacate
had been denied). The trial court subsequently granted the Lathens’ motion to set aside
the sheriff’s sale on the grounds that the underlying judgment had been vacated. On
December 12, 2007, Daniel applied to the trial court for an order directing the Sheriff to
return the $75,000 deposited by Daniel as part of the purchase price at the sheriff’s sale
based on the fact that the sale had been vacated. In a declaration filed in support of the
application, Daniel stated that Lathen had returned the Sherriff’s check un-cashed and
“[i]n order for the sheriff to cash the $75,000 homestead check (issued to the defendants
but now returned to me), the sheriff needs an order from this court directing the sheriff to



2      According to Lathen’s proposed First Amended Complaint in this case, Daniel
sold the property for $492,000 in June 2010.


                                              3
release my funds to me.” On December 13, 2007, the trial court ordered the sheriff to
return to Daniel the $75,000 he deposited in connection with the sheriff’s sale.
       Meanwhile, Daniel appealed the orders vacating the default judgment and setting
aside the sheriff’s sale (case No. B203799). In an opinion filed in June 2009, we
reversed the order vacating the default judgment and remanded the matter with directions
that the trial court: (1) allow Daniel to request the default judgment be reinstated in the
amount of $87,423.58 (the amount of damages alleged in the complaint) and
(2) reconsider its order setting aside the sheriff’s sale of the Lathens’ residence that was
based on the original default judgment.
       Following remand, the Lathens did not appear at the Order to Show Cause (OSC)
as to why judgment should not be entered pursuant to our opinion. Daniel elected to take
the reduced judgment. As directed by the trial court, Daniel filed a proposed judgment.
The proposed judgment ordered default judgment in the amount of $87,423.58, plus costs
and reinstated the previously-vacated sheriff’s sale. On November 9, 2009, the trial court
signed the judgment.3 Responding to Lathen’s objections to the judgment, the trial court
explained that, to the extent Lathen was entitled to the difference between the purchase
price of the property and the reduced money judgment, as well as the $75,000 homestead
exemption, Lathen’s remedy was to file a new lawsuit to recover those sums. Lathen
appealed from the reinstated default judgment (case No. B221584). This was the second
appeal in the first case. In an opinion filed in February 2011, we affirmed the $87,423.58
default judgment, concluding that the trial court correctly reinstated the sheriff’s sale
because, absent irregularities not present here, such sales are absolute. Regarding the
homestead exemption and distribution of the proceeds from the sheriff’s sale, we stated:
“Those are matters properly heard in the trial court, not for the first time on appeal. Nor
do we address whether law of the case or res judicata/collateral estoppel principles --


3       Lathen also complained that the judgment did not address the related quiet title
action (case No. BC391091). Following a July 2, 2010, OSC in the quiet title action, the
trial court awarded possession of the property to Daniel. Lathen’s appeal from that
judgment was dismissed.

                                              4
either arising out of this case or the related litigation between the parties -- affect a
resolution of claims to the sale proceeds or the homestead. Those issues are also more
properly addressed in the trial court.”

Case No. BC439232

       On July 12, 2010, while the second appeal in case No. BC337962 was pending,
Lathen filed the present action against Daniel for money had and received, unjust
enrichment, declaratory relief and conversion.4 The complaint sought as damages “no
less than the sum of” $390,567 (approximately the difference between the original default
judgment and the reduced default judgment) and $75,000 (the amount of the homestead
exemption check that Lathen never cashed). The appellate record does not include a
Reporter’s Transcript of the four-day court trial. At the conclusion of the evidence, the
trial court granted Daniel’s motion for judgment on all causes of action accept unjust
enrichment. As to the unjust enrichment claim, the trial court found Daniel obtained the
property as the result of a mistake of law (i.e., the amount of default damages to which he
was entitled). Although the sheriff’s sale was not set aside, “there is a lingering question
whether Daniel was unjustly enriched by the transfer.” The trial court concluded that the
relevant date for valuation of the property vis a vis the unjust enrichment claim was not
the date of the sheriff’s sale; but was April 25, 2011, the date the remittitur issued
following our second opinion in trial court case No. BC337962. The trial court reasoned
that Daniel’s title to the property was no longer in doubt on that date. On January 9,
2012, the trial court invited the parties to introduce evidence of valuation on April 25,
2011, and it continued the matter to 1:30 p.m. on January 17, 2012. Three days later, on

4       The Enforcement of Judgments Law provides: “If the judgment is reversed, the
judgment debtor may recover from the judgment creditor the proceeds of a sale pursuant
to judgment with interest at the rate on money judgments to the extent the proceeds were
applied to the satisfaction of the judgment.” (Code Civ. Proc., § 701.680, subd. (b)); see
also Lang v. Roché (2011) 201 Cal.App.4th 254.) Neither Lathen’s complaint, nor his
proposed First Amended Complaint, included an express section 701.680(b) cause of
action.


                                               5
January 12, 2012, Lathen subpoenaed the Sheriff’s Department seeking “All financial
records . . . related to [the sheriff’s sale] including but not limited to . . . any financial
records reflecting payments by the County to the Purchaser, Judgment Debtor or
Judgment Creditor subsequent to said Sheriff’s sale.” The documents were to be
produced at Lathen’s attorney’s office at 10:00 a.m. on January 17, 2012, the morning of
the continued trial date. The record does not include a Reporter’s Transcript of the
proceedings on January 17, 2012, and nothing in the record suggests that Lathen
attempted to introduce the documents obtained from the Sheriff’s Department at the trial.
According to the “Order Granting Renewed Motion for Judgment on the Unjust
Enrichment Claim” filed that day, the trial court granted judgment in favor of Daniel after
Lathen declined to introduce evidence of valuation on April 25, 2011, “based on
[Lathen’s] contention that the sale price at the sheriff’s sale on July 25, 2007 is the
relevant date of valuation . . . .” The trial court concluded: “[Lathen] had to prove that
on April 25, 2011, the value of the property exceeded $162,423.58. The only evidence of
value is the record in the sale price at the July 25, 2007 sheriff’s sale. As proof of the
property value nearly four years later, the July 25, 2007 sale price is stale and minimally
probative because: (1) it does not take into account the judicially noticeable fact that
there has been an intervening recession and decline in property values; and (2) it sheds no
light on the physical condition of the property on April 25, 2011.” Notice of Judgment in
favor of Daniel was filed and served on February 1, 2012.5
       On January 30, 2012, Lathen filed Notice of Intent to File a Motion For New Trial,
based on “new” evidence that Daniel had cashed the $75,000 homestead exemption




5      Lathen challenges only the denial of his motion for new trial; he does not
challenge the judgment entered on any of his causes of action. “An appellant abandons
an issue by failing to raise it in the opening brief.” (Padilla v. Rodas (2008)
160 Cal.App.4th 742, 753, fn. 2, citing H.N. & Frances C. Berger Foundation v. City of
Escondido (2005) 127 Cal.App.4th 1, 15.) We therefore need not discuss the merits of
any of the causes of action.


                                                6
check after the sheriff’s sale was set aside. The so-called new evidence was the
following, which were attached as exhibits to the Notice of Intent:
                    Deposition subpoena in this case dated January 11, 2012, to the
                     Sheriff’s Department seeking all financial records relating to the
                     sheriff’s sale of the Lathens’ home;
                    “Credit Transaction Receipt And Statement” in case No. BC337962,
                     dated July 25, 2007, reflecting Daniel’s deposit of $78,622;
                    Sheriff’s Department “Receipt of Credit Judgment” in case
                     No. BC337962, dated July 25, 2007, reflecting Daniel’s receipt of
                     $490,787, less statutory costs, signed by Daniel;
                    “Preliminary Change Of Ownership Report” in case No. BC337962;
                    County of Los Angeles check, dated August 31, 2007, payable to
                     Lathen, in the amount of $75,000;
                    “Service Ticket” in case No. BC337962 indicating Daniel’s purchase
                     of the property for $562,500;
                    “Application For An Order Directing Los Angeles County Sheriff
                     To Return Funds (Or Cash Check) To Plaintiff Nathan Daniel,” filed
                     on December 12, 2007, in case No. BC337962;
                    Order filed on December 13, 2007, in case No. BC337962, directing
                     the sheriff to return to Daniels the $75,000 he deposited in
                     connection with the sheriff’s sale;
                    Substitution of Attorney filed by Daniel on December 28, 2007, in
                     case No. BC337962, stating that he was now representing himself;
                    Letter from Daniel to Misty Douglas and/or Ellen Castillo dated
                     January 2, 2008 stating that he had terminated his attorney and was
                     now representing himself in case No. BC337962, and asking that the
                     $75,000 check he was requesting be forwarded to him and not his
                     former attorney;
                    Accounting dated April 23, 2008, reflecting disbursement of $75,000
                     to Daniel;
                    Document production request propounded on Daniel by Lathen in
                     case No. BC439232;
                    Daniel’s response to Lathen’s document production request.

Lathen filed points and authorities and his attorney’s affidavit in support of the new trial
motion on February 17, 2012, more than 10 days after the Notice of Intent was filed.
Following a hearing, the trial court denied Lathen’s new trial motion on various grounds
including that the supporting affidavit was untimely filed and that Lathen failed to



                                              7
establish the evidence was “newly discovered” within the meaning of Code of Civil
Procedure section 657. Lathen timely appealed.

                                      DISCUSSION

A.     No Abuse of Discretion In Denying Lathen’s Request to File the Motion and
       Supporting Affidavit Late

       Lathen contends the trial court abused its discretion in denying his ex parte
application to file the new trial motion and supporting affidavit late. We disagree.
       A new trial motion based on newly discovered evidence must be supported by
affidavits. (Code Civ. Proc., § 658.) Code of Civil Procedure section 659a governs the
deadlines for filing affidavits in support of a new trial motion. It provides that, within 10
days of the filing of a notice of intent to move for new trial, the moving party must serve
and file any affidavits intended to be used upon such motion. (Code Civ. Proc., § 659a.)
For good cause, the 10 days may be extended for not more than 20 days. (Ibid.)
       Here, Lathen timely filed the Notice of Intent to File Motion for New Trial on
January 30, 2012. It was set for hearing on March 1, 2012. February 10, 2012, was the
10th day after January 30, but Lathen did not file his motion and supporting affidavit
until a week later, on February 17, 2012. On that day, Lathen filed (1) a “Notice of
Motion and Motion for a New Trial; Declaration of B. Kwaku Duren and Attached
Exhibits” and (2) an ex parte application for an order extending time to file
“Supplemental Briefing For Motion For New Trial.” The stated reason for the extension
request was “computer crashes while drafting the pleading causing loss of data which had
to be recreated.” Although the motion and accompanying attorney declaration were
signed and dated February 15, 2012 (a Wednesday), they were not served on Daniel until
after 5:00 p.m. on Thursday, February 16 and not filed until Friday, February 17, 2012.
There is no explanation for the delay between completing the documents and filing or
serving them. The trial court denied the extension request and, among the grounds upon
which it denied the new trial motion, was the untimely filing of the motion and
supporting affidavit. We find no error.

                                              8
       Implicit in the trial court’s denial of Lathen’s application for an extension is a
finding that Lathen did not establish the requisite good cause. That finding is supported
by the evidence that Lathen waited two days after the document was completed before
filing and serving it on Daniel. Under these circumstances, Lathen did not establish good
cause for an extension to February 17, 2012. But even assuming the trial court erred in
not allowing the late filing, as we shall explain, it did not err in denying the new trial
motion on alternate grounds.

B.     Denial of the New Trial Motion Was Not An Abuse of Discretion

       At the core of Lathen’s contention that the trial court abused its discretion in
denying his motion for new trial based on newly discovered evidence is a challenge to the
court’s finding that Lathen did not use reasonable diligence to discover the so-called
“new” evidence. We find no error.
       We begin with the standard of review. The trial court’s exercise of discretion in
ruling on a new trial motion is entitled to great deference and we will reverse the ruling
only if “in light of the applicable law and considering all of the relevant circumstances,
the court’s decision exceeds the bounds of reason and results in a miscarriage of justice.
[Citations.]” (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1415.)
       A new trial motion may be granted on the grounds of “newly discovered evidence
. . . which [the moving party] could not, with reasonable diligence, have discovered and
produced at trial.” (Code Civ. Proc., § 657, subd. (4).) The essential elements which
must be established to obtain a new trial based on newly discovered evidence are (1) that
the evidence is newly discovered; (2) that reasonable diligence was exercised in its
discovery and production; and (3) that the evidence is material to the moving party’s
case. (Hill v. San Jose Family Housing Partners, LLC (2011) 198 Cal.App.4th 764, 778-
779.) Such motions are disfavored and a strict showing of diligence is required.
(Horowitz v. Noble (1978) 79 Cal.App.3d 120, 138.) When a party knows or should have
known about the pertinent evidence before trial but did not exercise due diligence in



                                               9
producing it, it would be error to grant a new trial. (Doe v. United Airlines, Inc. (2008)
160 Cal.App.4th 1500, 1509.)
        Here, we find no abuse of discretion in the trial court’s finding that the “newly
discovered evidence” upon which Lathen based his motion was not newly discovered
within the meaning of the statute because Lathen did not exercise reasonable diligence to
discover such evidence. As noted by the trial court, the documents Lathen characterized
as “newly discovered” were either pleadings in case No. BC337962, in which Lathen was
represented by the same attorney who represents him in this case, or Sheriff’s Department
records, which Lathen actually obtained before the trial was concluded, and could have
obtained much earlier. Lathen’s argument that he did not subpoena the Sheriff’s
Department sooner because he reasonably relied on Daniel’s response to Demand No. 7
in Lathen’s document production demand in case No. BC337962 is not persuasive.
Demand No.7 sought all documents “showing or describing what [Daniel] did with the
Seventy-Five ($75,000.00) Thousand Dollar ‘homestead exemption’ check that was made
payable to [Lathen] but returned to [Daniel’s attorney] on or about December 10, 2007.”
In his response, Daniel identified the check itself and two letters from Lathen’s counsel.
Contrary to Lathen’s assertion, there is nothing to suggest that this response was
inaccurate, much less perjured. This is because the demand very specifically sought
documents relating to the check issued to Lathen, it did not seek documents pertaining to
the funds themselves. The trial court reasonably could have concluded that, from the
filing of Lathen’s complaint, Lathen was claiming that Daniel had converted the $75,000
homestead extension and was thus put on notice to subpoena all related documents at that
time.




                                             10
                                 DISPOSITION

    The judgment is affirmed. Daniel shall recover his costs on appeal.




                                             RUBIN, J.
WE CONCUR:




          BIGELOW, P. J.




          FLIER, J.




                                        11
