Judge: Brian F. Gasdia, Case: VC065875, Date: 2023-12-14 Tentative Ruling

Case Number: VC065875    Hearing Date: December 14, 2023    Dept: SER

BELMAN v. GARCIA AND GALLARZO PROPERTY HOLDINGS, LLC

CASE NO.:  VC065875

HEARING:  12/14/23

TENTATIVE ORDER

      I.         Plaintiff/Cross-Defendant/Cross-Complainant LORENA BELMAN’s Motion to Set Aside the Judgment and/or for Judgment Notwithstanding the Verdict is DENIED.

    II.         Plaintiff/Cross-Defendant/Cross-Complainant LORENA BELMAN’s Moton for New Trial is DENIED.

Defendants to give Notice.

This wrongful termination action was filed on October 21, 2016. This action was consolidated with the later-filed action, Belman v. Garcia (VC066907), filed on February 7, 2018. The subject action is the lead case.

On June 14, 2023, a Judgment, reflecting a jury’s verdict, was entered. The June 14, 2023 Judgment awarded Plaintiff/Cross-Defendant/Cross-Complainant LORENA BELMAN (“Belman”) $197,750 from Defendants LOS BAGRES CORPORATION; JUAN ERASMO GARCIA; and GIZZELLE CABRERA, jointly and severally, plus recoverable costs in the amount of $31,005.42; and expert costs from Los Bagres Corporation and Juan Erasmo Garcia in the amount of $7,110.00; and attorney’s fees in the amount of $699,990.00.

Belman moves to set aside the Judgment entered on June 14, 2023 “and/or” enter a new judgment notwithstanding the verdict; and also separately moves for a New Trial.

Belman argues that a judgment notwithstanding the verdict and/or new trial is proper because this Court committed to following five prejudicial errors: (1) Granting the dismissal of claims against Defendant/Cross-Defendant Mariela Garcia because this Court’s February 1, 2019 Order granted summary judgment as to Defendant Mariela Garcia, but not Cross-Defendant Mariela Garcia; (2) The Court improperly denied Belman’s request for attorney’s fees on June 1, 2023; (3) This Court improperly reduced the jury’s verdict of $303,000, by $106,250, on the basis that Belman received $106,250 in a workers compensation case; (4) The Court should have awarded Belman all costs requested against Cabrera and all prejudgment interest against the other two defendants as Belman was the prevailing party; and (5) the Court improperly reduced and failed to award reasonable attorney fees—fees should have not have been reduced to $699,990.

In Opposition, Former-Defendant Mariela Garcia argues: (1) Belman’s Motion is untimely; (2) the one-judgment rule does not apply; and (3) Belman fails to provide any law or arguments sufficient to support a Judgment Notwithstanding the Verdict or to Set Aside the Judgment and New Trial.

“A judgment or decree, when based upon a decision by the court, or the special verdict of a jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another and different judgment entered, for either of the following causes, materially affecting substantial rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts; and in such case when the judgment is set aside, the statement of decision shall be amended and corrected. 2. A judgment or decree not consistent with or not supported by the special verdict.” (CCP §663.) “A party intending to make a motion to set aside and vacate a judgment, as described in Section 663, shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made, and specifying the particulars in which the legal basis for the decision is not consistent with or supported by the facts, or in which the judgment or decree is not consistent with the special verdict, either: (1) After the decision is rendered and before the entry of judgment. (2) Within 15 days of the date of mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.” (emphasis added) (CCP §663a(a).) 

“A motion for judgment notwithstanding the verdict shall be made within the period specified by Section 659 for the filing and service of a notice of intention to move for a new trial.” (CCP §629(b).) “The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either: (1) After the decision is rendered and before the entry of judgment. (2) Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon him or her to file and serve a notice of intention to move for a new trial.” (CCP §659(a).)

Accordingly, the Motion to Set Aside Judgment; Motion for Entry of Judgment Notwithstanding the Verdict; and Motion for New Trial were all due to be filed and served within 15 days of the service of the notice of entry of Judgment.

Here, Judgment was entered on June 14, 2023, and served on June 20, 2023. Plaintiff’s Notice of Intent to Move for New Trial was not filed until October 13, 2023. Plaintiff’s Motions were not filed until October 24, 2023.

The Motions are DENIED as untimely.