Judge: Kevin C. Brazile, Case: 19STCV32276, Date: 2024-06-18 Tentative Ruling

Hearing Date: June 18, 2024

Case Name: Devone, et al. v. Morgan Stanley & Co., LLC, et al.

Case No.: 19STCV14477

Matter: Motion to Vacate Judgment

Moving Party: Plaintiffs Adam DeVone, Mario Frank Voce, and Julia Voce, as co-trustees 

of the Voce Family Trust dated 8/17/1970, the Voce Residuary Trust dated 

8/17/1970 and the Restated Voce Marital Trust dated 8/17/1970

Responding Party: Defendants Morgan Stanley & Co., LLC and John R. Privitelli

Notice: OK

Ruling: The Motion to Vacate Judgment is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

This is an action in which Plaintiffs Adam DeVone, Mario Frank Voce, and Julia Voce, as co-trustees of the Voce Family Trust dated 8/17/1970, the Voce Residuary Trust dated 8/17/1970 and the Restated Voce Marital Trust dated 8/17/1970, alleged abuse by a financial advisor relating to a "trading strategy consist[ing] of high-volume, high-risk options transactions which were saddled with massive transactional commissions, costs, and fees." 

At trial, the Court granted a nonsuit in favor of Defendants Morgan Stanley & Co., LLC and John R. Privitelli.

Defendants filed a proposed judgment on April 2, 2024.

On April 12, 2024, at 3:30 PM, the Court signed the proposed judgment at a non-appearance case review.  

That same day—at 4:15 PM—Plaintiffs filed objections to the judgment.

On May 6, 2024, Plaintiffs filed the instant Motion to Vacate Judgement on the basis that the Court prematurely entered judgment without considering Plaintiffs’ timely objections.

That same day, the Court issued a minute order in which it overruled Plainitffs’ objections to the judgment.

Plaintiffs continue to insist that the judgment in this action should be vacated because the Court “deprived Plaintiffs of nearly half a day’s time to file their Objections by arbitrarily entering a final judgment at the exact minute when the ‘Non-Appearance Case Review’ was set, April 12, 2024, at 3:30 p.m., even though the deadline for filing the Objections was not until 11:59 p.m. that day.” 

Code Civ. Proc. § 663 states in relevant part, “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 the 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.”

Again, the Court disagrees with Plaintiffs’ objections.  It’s true that those objections should have been ruled on before the Court entered judgment; however, to the extent that the Court overruled the objections on May 6, 2024, the Court does not see any basis to vacate the judgment.  This is because the Court would be vacating the judgment merely to enter the same one again.  Indeed, “[t]he law does not require idle acts.”  (People v. Haskins (1985) 171 Cal.App.3d 344, 350.)

Thus, the Motion is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.