Lunzer VS Strong Builders Construction, Inc.

RG19002374: Lunzer VS Strong Builders Construction, Inc. 09/03/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518

Tentative Ruling - 08/31/2026 Mark Fickes

The Motion to Vacate MOTION TO VACATE AMENDED JUDGMENT AND ORDER GRANTING COST OF PROOF SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed by Thomas Lunzer on 04/14/2026 is Granted in Part.

BACKGROUND

Plaintiff Thomas Lunzer ("Lunzer") sued Strong Builders Construction, Inc. ("Strong Builders"), Radu Binzari, and George Machabeli arising out of a residential construction project in Oakland. Trial commenced November 12, 2024 before the Hon. Victoria Kolakowski. At the close of Lunzer's case-in-chief on November 25, 2024, the court granted nonsuit as to Binzari and Machabeli, leaving only Strong Builders. On November 26, 2024, the jury returned a defense verdict, finding that Lunzer failed to do "all, or substantially all, of the significant things that the contract required him to do." Judgment was entered for defendants on January 8, 2025.

On January 22, 2025, defendants moved for cost-of-proof sanctions under Code of Civil Procedure section 2033.420, seeking $395,841.00 based on Lunzer's denial of four requests for admission, specifically Strong Builders Request for Admission Nos. 13 and 16 and Machabeli Request for Admission Nos. 1 and 3. The motion was unopposed. The Court granted the motion on April 22, 2025, and the judgment was amended on April 24, 2025 to incorporate the sanctions. Lunzer, now represented by counsel, moved to vacate the amended judgment and the sanctions order on April 14, 2026.

In its July 30, 2026 order, the Court issued a tentative concluding that the statutory vehicles for relief had expired (Code Civ. Proc., §§ 1008, 473, subd. (b), 663a) and that Lunzer's medical, age, and post-trial-exhaustion grounds were not diligently asserted. The Court identified one unresolved concern: Defendants' sanctions motion was served on Lunzer, then self-represented, by electronic service only, and the docket contained no entry authorizing electronic service. The Court expressed concern that the sanctions order was void for lack of due process and ordered supplemental briefing on whether Lunzer expressly consented to electronic service, and if so, when and how. Both sides submitted supplemental briefs and declarations by the August 21, 2026 deadline.

SUPPLEMENTAL BRIEFING AND SCOPE OF THIS ORDER

The supplemental briefing has been received. As set forth below, the record establishes that Lunzer did not expressly consent to electronic service, so the sanctions order is void for lack of due process and is set aside under Code of Civil Procedure section 473, subdivision (d). Because the parties have also fully briefed the merits of the section 2033.420 motion, the court reaches those merits, and resolves the motion to vacate in full rather than continuing the matter further. RG19002374: Lunzer VS Strong Builders Construction, Inc. 09/03/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518

LEGAL STANDARD

Electronic service on a self-represented party in a civil action is permitted only with that party's express consent. An unrepresented party "may consent to receive electronic service," and express consent "may be given by either of the following: (i) [s]erving a notice on all parties and filing the notice with the court[;] [or] (ii) [m]anifesting 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." (Code Civ.

Proc., § 1010.6, subd. (c).) The statute is explicit that "[t]he act of electronic filing shall not be construed as express consent." (Ibid.) California Rules of Court, rule 2.251(b), sets the same affirmative-act standard, and rule 2.251(c)(3)(B) provides that self-represented parties "are to be served by non-electronic methods unless they affirmatively consent to electronic service."

A monetary sanctions award may not be imposed without adequate notice and an opportunity to be heard; a sanctions order entered without proper notice of the sanctions sought is void. (Sole Energy Co. v. Hodges (2005) 128 Cal.App.4th 199, 210.) Code of Civil Procedure section 473, subdivision (d), authorizes the court to "set aside any void . . . order," and a motion to vacate an order void for lack of proper service is not subject to the statutory or judicially created time limits that govern voidable orders. (California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, 225-226; County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1228-1229.)

DISCUSSION

A. The Sanctions Motion Was Not Validly Served

The supplemental record establishes that neither statutory method of consent was satisfied. There is no served-and-filed notice of consent, no Judicial Council form EFS-005-CV, no stipulation, no court order, and no docket entry reflecting an electronic-service opt-in by Lunzer while selfrepresented. That absence was confirmed both by Lunzer's counsel's review of the register of actions and, independently, by the court's own docket review reflected in its July 30, 2026 order. Lunzer's use of the One Legal system to make his own filings is not consent to receive service, because the act of electronic filing "shall not be construed as express consent." (Code Civ. Proc., § 1010.6, subd. (c).)

Defendants' principal evidence is Lunzer's November 30, 2022 email requesting that defense counsel "send me electronic versions of the Motions in Limine and all future documents." That email does not constitute statutory consent. It requested electronic copies of a bulky paper set of motions in limine; it did not state that Lunzer consented to electronic service, did not authorize Defendants to cease non-electronic service, was not served and filed as a notice of consent, was not submitted through the court or an electronic filing service provider, and did not provide an electronic-service address for that purpose. A request for courtesy copies is not the affirmative act that section 1010.6, subdivision (c), and rule 2.251(b) require. The surrounding record

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19002374: Lunzer VS Strong Builders Construction, Inc. 09/03/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518 confirms that reading: before and after the November 2022 email, Lunzer repeatedly refused electronic service, writing in September 2021 that "I have not agreed to electronic delivery and required a paper copy of all motions and other documents" and that "[e]mail copies are a courtesy, not a substitute for paper delivery," and directing in August 2020 and December 2023 that communications proceed by U.S. mail or process server. Consistent with Lunzer's position, Defendants' own proof of service for their motion in limine No. 1 served Lunzer, "pro per," by personal service, while serving represented counsel by email only.

Defendants' contention that the consent limits for self-represented parties do not apply because Lunzer was represented by attorney Drew Sanchez when the November 30, 2022 email was sent is not supported by the record. Lunzer was self-represented when he sent that email. Sanchez's involvement was a later, limited-scope appearance for the December 5, 2022 hearing only; the Notice of Limited Scope Representation stated that Lunzer would continue to represent himself in propria persona, that Sanchez appeared only as "second chair" in a "secondary capacity," and that his appearance was "not an appearance as [Lunzer's] attorney of record."

Sanchez was not counsel for any post-trial motion, including the January 22, 2025 sanctions motion. Copying a limited-scope attorney on a request for soft copies is not the filed notice, provider manifestation, court order, or stipulation the statute requires. Defendants' reliance on Leung v. Alivandivafa (Sept. 26, 2023, B323416) and Alden v. W.G. Realty (July 24, 2020, B296259) does not aid them; both are unpublished and may not be cited or relied upon. (Cal. Rules of Court, rule 8.1115(a).)

Finally, defendants' January 22, 2025 proof of service recited that electronic service was made "[b]ased on a court order or an agreement of the parties," and identified Lunzer as "pro per," served "[v]ia email only." The Court is unable to locate evidence of any order or agreement. A proof of service cannot manufacture the consent the statute requires by asserting it. The court finds that Lunzer did not expressly or affirmatively consent to electronic service within the meaning of Code of Civil Procedure section 1010.6, subdivision (c), or California Rules of Court, rule 2.251, and that Defendants' service of the cost-of-proof sanctions motion by email only was therefore invalid.

B. The Sanctions Order Is Void

Because defendants did not validly serve the motion, the resulting order was entered without the notice and opportunity to be heard that due process requires, and it is void. (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at p. 210.) A void order may be set aside under Code of Civil Procedure section 473, subdivision (d), without regard to the deadlines the court identified in its tentative. Our Supreme Court has held that a section 473, subdivision (d), motion to vacate a judgment void for lack of proper service "is not subject to the judicially imposed two-year limitation." (California Capital Ins.

Co. v. Hoehn, supra, 17 Cal.5th at pp. 225-226.) An order void for lack of service is a nullity that the passage of time cannot cure. "[W]hat is initially void is ever void and life may not be breathed into it by lapse of time," and "neither laches nor the ordinary statutes of limitation may be invoked" against a proceeding to set it aside. (County of

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19002374: Lunzer VS Strong Builders Construction, Inc. 09/03/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518 San Diego v. Gorham, supra, 186 Cal.App.4th at p. 1229, quoting Los Angeles v. Morgan (1951) 105 Cal.App.2d 726, 731-732.) The court retains inherent power to vacate an order void for lack of due process even after the statutory relief periods have run. (Gorham, supra, 186 Cal.App.4th at pp. 1228-1229.)

Two consequences follow. First, the timeliness bars identified in the Court's July 30, 2026 Order (sections 1008, 473, subdivision (b), and 663a) govern voidable orders and equitable relief, and they do not bar setting aside an order that is void for want of due process. Second, the court need not resolve Lunzer's equitable extrinsic-fraud and extrinsic-mistake theory. That theory would face substantial obstacles, as equitable relief is unavailable to a party who "has been given notice of an action and has not been prevented from participating therein" (Kulchar v.

Kulchar (1969) 1 Cal.3d 467, 472), is confined to "exceptional circumstances" given the strong policy favoring finality (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 981-982), and is unavailable where the party's own negligence allowed the fraud or mistake to occur (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 30). The Court's July 30, 2026 Order’s conclusion that Lunzer did not diligently pursue equitable relief is therefore sound on its own terms. However, the voidorder analysis does not depend on it, and due process does not permit conditioning relief from a void order on a showing of a meritorious defense.

C. The $395,841.00 Award Cannot Stand on the Merits as Granted

Because the parties have fully briefed the section 2033.420 issues, the Court reaches the merits. Section 2033.420, subdivision (a), authorizes recovery of "the reasonable expenses incurred in making that proof" only where the requesting party, after a denial, "thereafter proves" the truth of the matter, and the award is mandatory unless the court finds, among other things, that the party had "reasonable ground to believe that that party would prevail on the matter" or that "[t]here was other good reason for the failure to admit." (Code Civ.

Proc., § 2033.420, subds. (a), (b)(3), (b)(4).) The recoverable amount must be confined to the cost of proving the matters denied, and the requested fees "must be segregated from costs and fees expended to prove other issues." (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529-530.) Although fees need not be allocated to each individual request, particularly where the requests relate to a single issue, a party "cannot recover costs of proof for other issues" outside the scope of the requests. (Association for Los Angeles Deputy Sheriffs v.

Macias (2021) 63 Cal.App.5th 1007, 1030- 1031.)

On the present record, the award fails these requirements. Defendants sought, and obtained, $395,841.00 as a single, undifferentiated whole-case figure, without allocating any portion to the four requests for admission on which the motion was based. Defendants' position is that segregation is unnecessary because the requests were coextensive with the entire defense of a case in which claimed damages totaled $4,684,971.98. That contention overreads Macias. While per-request allocation is not required, the moving party still may not recover costs of proof for issues outside the scope of the requests. A blanket, whole-case award for the defense of a multicount action (sounding in general negligence, negligence per se, breach of implied warranties,

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19002374: Lunzer VS Strong Builders Construction, Inc. 09/03/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518 breach of contract, and breach of the implied covenant) is not self-evidently confined to the expense of proving these four specific matters. Defendants, who bore the burden to make that showing, did not supply the required allocation, and the Court has no evidentiary basis on this record to conclude that the entire $395,841.00 represents expense incurred "in making that proof." The award therefore cannot be reinstated as granted.

D. Defendants May File a New Cost-of-Proof Sanctions Motion

The court does not resolve, on this record, whether defendants may recover some cost-of-proof sanctions on a properly served and properly supported motion. Those questions turn on the trial record and are best decided at a hearing at which Lunzer may be heard. As to Strong Builders Request for Admission Nos. 13 and 16, the parties dispute whether the matters denied were "proven" at trial, and cost-of-proof recovery requires that "evidence must be introduced." (Grace v. Mansourian, supra, 240 Cal.App.4th at pp. 529-530.)

As to the Machabeli requests, the nonsuit does not itself resolve the question. A nonsuit can supply the required proof where the plaintiff introduced evidence in its case-in-chief establishing the matters, but not where a party "has not put forth any evidence on an issue at trial" (Stull v. Sparrow (2001) 92 Cal.App.4th 860, 868), and a nonsuit did not bar an award in Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 692, because "trial had begun and [d]efendants were required to present evidence to the jury during [the plaintiff's] case-in-chief" on the matters denied.

Defendants represent that they examined Machabeli during Lunzer's case-in-chief. Whether that testimony proved the matters denied is a question for the renewed motion. Finally, whether Lunzer's denials fall within the subdivision (b)(3) or (b)(4) exceptions is requestspecific. To defeat a mandatory award, a denial must rest on "more than a hope or a roll of the dice." (Grace v. Mansourian, supra, 240 Cal.App.4th at p. 532.)

E. The Separate $32,690.00 Prevailing-Party Cost Award Is Not Disturbed

The First Amended Judgment also incorporates a separate $32,690.00 award of prevailing-party costs, which rests on defendants' memorandum of costs and their Code of Civil Procedure section 998 expert-witness costs, not on the void sanctions order. Lunzer did not move to tax those costs, and the supplemental record establishes no service defect as to the memorandum of costs. That award is not disturbed by this order.

CONCLUSION

The supplemental briefing has resolved the service question the Court reserved in its July 30, 2026 order. Lunzer did not consent to electronic service, the sanctions motion was not validly served, and the resulting order is void for lack of due process. Accordingly, the court orders as follows:

1. Plaintiff's motion to vacate is GRANTED IN PART under Code of Civil Procedure section 473, subdivision (d). The April 22, 2025 order granting defendants' motion for cost-of-

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19002374: Lunzer VS Strong Builders Construction, Inc. 09/03/2026 Hearing on Motion to Set Aside/Vacate Judgment (CCP 473) filed by Thomas Lunzer (Plaintiff) CRS# 259213861293 in Department 518 proof sanctions is VACATED, and the $395,841.00 cost-of-proof sanctions component of the April 24, 2025 First Amended Judgment is STRICKEN, as void for lack of due process.

2. On the merits, the $395,841.00 award may not be reinstated as granted, because defendants did not segregate the claimed fees or establish that the award bears a reasonable relationship to the expense of proving the four specific matters denied.

3. Defendants may file a renewed motion for cost-of-proof sanctions within 30 days of this Order, served in compliance with Code of Civil Procedure sections 1005 and 1010.6 and supported by a fee showing that segregates the expenses incurred in proving the specific matters denied from expenses incurred on other issues. Plaintiff may file opposition, and the court will decide the merits (including whether the matters denied were proven and whether the subdivision (b)(3) or (b)(4) exceptions apply) on that record. If defendants do not file a renewed motion within that period, the request for cost-of-proof sanctions is DENIED.

4. The separate $32,690.00 prevailing-party cost award incorporated in the First Amended Judgment is not disturbed by this Order.