Motion to Set Aside/Vacate Judgment (CCP 473)
RG19002374: Lunzer VS Strong Builders Construction, Inc. 07/30/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518
Tentative Ruling - 07/28/2026 Mark Fickes
Plaintiff Thomas Lunzer claims he hired Strong Builders Construction, Inc., Radu Binzari, and George Machibeli for a construction project on his property in Oakland, California and that Defendants made several mistakes. (Compl. ¶¶ 919, Jan. 14, 2019; see also Am. to Compl., Jan. 10, 2020 (substituting Machibeli for Doe 1).) Lunzer filed a complaint against Defendants for general negligence, negligence per se, breach of the implied warranty of merchantability, breach of the implied warranty of fitness, breach of contract, and breach of the implied covenant of good faith and fair dealing. (Id. ¶¶ 2055.) Defendants filed an answer generally denying the allegations and asserting several affirmative defenses. (Strong Builders & Binzaris Answer, Feb. 13, 2019; see also Machibelis Answer, Apr. 26, 2021.)
On November 26, 2024, a jury trial was held in this case, and judgment was entered in favor of Defendants by Judge Kowlakowski on January 8, 2025.
On January 22, 2025, Defendant filed a Motion for Cost of Proof Sanctions against Plaintiff in the amount of $395,841.00.
The motion was unopposed.
On April 22, 2025, the Motion for Cost of Proof Sanctions was granted by Judge Fickes and on April 24, 2025, the judgment was amended to include the sanctions.
On April 14, 2026, Plaintiff filed a motion to vacate the amended judgment and the order granting cost of proof sanctions.
Under California law, a party generally cannot vacate an award of cost of proof sanctions nearly a year after it was granted, even in equity. All available procedural mechanisms for challenging such an order carry strict time limits that expire well before one year. A motion for reconsideration under Code of Civil Procedure § 1008 must be filed within 10 days of service of notice of entry of the order. Relief from an order due to mistake or excusable neglect under § 473(b) must be sought within six months. A motion to vacate a judgment under § 663a is subject to a mandatory and jurisdictional 60-day limit.
Thus, Plaintiffs request for relief from the cost of proof sanction due to his age, medical issues, and exhaustion after the trial are irrelevant as they have not been diligently asserted.
However, there is an issue with service that concerns the Court. Defendants motion for cost of proof sanctions against plaintiff was served electronically on Plaintiff, in pro per, Thomas Luzner. (See Courts Docket, Proof of Service dated 1/22/26.) RG19002374: Lunzer VS Strong Builders Construction, Inc. 07/30/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518 The court does not find any entry on the docket that allows for electronic service of Plaintiff.
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CCP § 1010.6 provides in relevant part:
(2) An unrepresented party may consent to receive electronic service.
(3) Express consent to electronic service may be given by either of the following:
(i) Serving a notice on all parties and filing the notice with the court.
(ii) Manifesting affirmative consent through electronic means with the court or the court's electronic filing service provider, and concurrently providing the party's electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.
If a pro per party did not expressly consent to electronic service, then the electronic service would be invalid under California law since CCP § 1010.6 requires that unrepresented parties expressly consent to electronic service.
The Court is concerned that the motion for proof sanctions is void for lack of due process.
Thus, the court is requiring the parties to submit supplemental briefing and declaratory evidence on this issue of whether Plaintiff has expressly consented to electronic service in this case and if so, when and how. Parties are required to file and serve supplementary briefing and declarations by August 21, 2026.
For the foregoing reasons, the Court CONTINUES the hearing on the motion to vacate to September 3, 2026.
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The Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 scheduled for 07/30/2026 is continued to 09/03/2026 at 02:30 PM in Department 518 at Hayward Hall of Justice.
PLEASE NOTE: Pursuant to California Rule of Court 3.1308, subdivision (a)(1), this tentative ruling will become the order of the Court unless it is contested before 4:00 PM on the court day preceding the noticed hearing.
To contest a tentative ruling, a party should do the following:
SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA
RG19002374: Lunzer VS Strong Builders Construction, Inc. 07/30/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518 First, the party must notify Department 518, by email at Dept518@alameda.courts.ca.gov and copy all counsel of record and self-represented parties. The contesting party must state in the subject line of the email the case name, case number and motion.
Second, the party shall log into the eCourt Public Portal, search for this case (e.g., by case number), select the case name, select the "Tentative Rulings" tab, click the "Click to Contest this Ruling" button, enter the party's name and a brief statement of the party's reason for contesting the tentative, and click "Proceed."
Please note the Court does not permit remote appearances for motions for summary judgment that are contested. If you contest a Motion for Summary Judgment, you must appear in person.
For all other motions (unless otherwise noted in the tentative ruling), Parties may appear via videoconference, using the Zoom.com website or application. TO CONNECT TO ZOOM: Department 518 is inviting you to a scheduled ZoomGov meeting.
Topic: Department 518's Personal Meeting Room
Join ZoomGov Meeting https://alameda-courts-ca-gov.zoomgov.com/j/16054307984
Meeting ID: 160 5430 7984
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