Judge: Kerry Bensinger, Case: BC720060, Date: 2024-11-07 Tentative Ruling

Case Number: BC720060    Hearing Date: November 7, 2024    Dept: 31

Tentative Ruling

Judge Kerry Bensinger, Department 31

HEARING DATE:      November 7, 2024                                       TRIAL DATE:  N/A

CASE:                         Nicholas Butta v. Billie Lee Sgroi-Proffitt

CASE NO.:                 BC720060

MOTION FOR RECONSIDERATON

MOVING PARTY:                   Defendant Billie Lee Sgroi-Proffitt

RESPONDING PARTY:      Plaintiff Nicholas Butta

I.          FACTUAL AND PROCEDURAL BACKGROUND

            On August 30, 2018, Plaintiff, Nicholas Butta, filed the instant action against Defendant, Billie Lee Sgroi-Proffitt (Defendant) and Does 1 through 50.  On October 30, 2020, Plaintiff filed the Second Amended Complaint (“SAC”), which added Karen Proffitt and Annette Proffitt Productions as defendants and reduced the number of Doe defendants to 20.  The SAC asserts causes of action for (1) Defamation, (2) Public Disclosure of Private Facts, (3) Intentional Infliction of Emotional Distress, (4) Conversion, (5) Unjust Enrichment, (6) Declaratory Relief, (7) Declaratory Relief, (8) Money Had and Received, and (9) Mistaken Receipt.  Defendant is self-represented.

On February 27, 2024, the court entered default judgment against Defendant and in favor of Plaintiff. 

On April 22, 2024, Defendant filed a Notice of Appeal from the order entering default judgment.

On June 4, 2024, the clerk of the court issued a Notice of Default to Defendant.

On October 3, 2024, the Second Appellate District dismissed Defendant’s appeal for failure to cure the default.

On October 15, 2024, Defendant filed this motion for reconsideration of the October 3, 2024, order dismissing her appeal.

On October 25, 2024, Plaintiff filed an opposition.

Defendant did not file a reply.

II.           DISCUSSION & LEGAL STANDARD

            Defendant’s motion is procedurally deficient.  “When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” (Code Civ. Proc. § 1008, subd. (a), emphasis added.) 

            Here, the Second Appellate District issued the October 3, 2024, order dismissing Defendant’s appeal.  Accordingly, this court lacks jurisdiction to reconsider the October 3, 2024 order.

III.       CONCLUSION

            The motion for reconsideration is DENIED.

Plaintiff to give notice. 

Dated:   November 7, 2024