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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CRAIG S. LATHEN,

Plaintiff and Appellant,

v.

NATHAN DANIEL,

Defendant and Respondent.

 B240414

 (Los Angeles County

 Super. Ct. No. BC439232)

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.

__________________________
2

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.
3

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.2In 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. 
4

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.
5

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.
6

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.
7

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 
8

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.
9

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 
10

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.
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DISPOSITION

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

RUBIN, J.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.