Judge: Michael E. Whitaker, Case: 20STCV32454, Date: 2023-11-15 Tentative Ruling

Case Number: 20STCV32454    Hearing Date: March 4, 2024    Dept: 207

TENTATIVE RULING

DEPARTMENT         207

HEARING DATE      March 4, 2024

CASE NUMBER        20STCV32454

MOTIONS                  Motions to Set Aside/Vacate Judgment

MOVING PARTIES  Defendants Eleuterio Bernardo del Rosario and Zerlyn Fonseca del Rosario

OPPOSING PARTY  Plaintiff M.O., a minor, by and through his Guardian Ad Litem, J.O.

BACKGROUND

On July 26, 2023, the Court issued a Minute Order granting Plaintiff’s request for terminating sanctions, striking the answer, and entering default against Defendants Eleuterio Bernardo Del Rosario and Zerlyn Fonseca Del Rosario (“Defendants”).  (July 26, 2023 Minute Order.)

On October 10, 2023, the Court entered default judgment in the amount of $1,045,564.46, representing $44,466.46 in special damages; $1,000,000 in general damages; and $1,098 in costs.

On November 15, 2023, the Court granted Defendants’ motion to set aside/vacate the default judgment on the basis that the declaration of J.O., Plaintiff’s guardian ad litem, was not signed under penalty of perjury under the laws of the state of California, pursuant to Code of Civil Procedure section 2015.5, and therefore Plaintiff had not substantiated the request for special damages.  (November 15, 2023 Minute Order.)

On December 18, 2023, the Court granted Defendant’s renewed request for default judgment and Judgment was entered the same day.  (See December 18, 2023 Minute Order; December 18, 2023 Judgment.)

Defendants have each filed nearly identical motions to set aside/vacate the judgment or in the alternative for a new trial.  Plaintiff has filed nearly identical oppositions to each.

LEGAL STANDARD

            Code of Civil Procedure section 663 provides:

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.

            Similarly, Code of Civil Procedure section 657 provides:

The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1.     Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2.     Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3.     Accident or surprise, which ordinary prudence could not have guarded against.

4.     Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5.     Excessive or inadequate damages.

6.     Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7.     Error in law, occurring at the trial and excepted to by the party making the application.

Code of Civil Procedure section 658 provides: “When the application is made for a cause mentioned in the first, second, third and fourth subdivisions of Section 657, it must be made upon affidavits; otherwise it must be made on the minutes of the court.” (Code Civ. Proc., § 658.)

ANALYSIS

            Defendants argue the default judgment should be set aside/vacated or in the alternative, Defendants seek a new trial because (1) the complaint does not establish DOES 3 and 4 are the parents of DOE 1, that DOE 1 is a minor; (2) Plaintiff failed to plead a common law cause of action for parental liability; (3) Civil Code section 1714.1 limits damages to $25,000; and (4) the declarations do not support the requested damages.

            As a threshold matter, a party moving for a new trial must file and serve the notice of intent within 15 days of the date of the mailing of the notice of entry of judgment by the clerk (Code Civ. Proc., § 659.)  That time “shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.”  (Code Civ. Proc., § 659, subd. (a).)  Here, the clerk mailed the notice of entry of judgment on December 18, 2023.  Fifteen days later was Tuesday, January 2, 2024.  However, Defendants did not file a notice of intent to move for new trial until January 5, 2024.  Thus, Defendants’ notice of intent to move for a new trial was untimely, and the delay deprives the Court of jurisdiction to hear it. 

            As for the motions to set aside/vacate the judgment, the Court notes that Defendant Zerlyn Fonceca Del Rosario has initiated a bankruptcy action.  (See February 16, 2024 Notice of Stay of Proceedings.)  Because the proceedings must be stayed as to Defendant Zerlyn Fonceca Del Rosario, who is jointly and severally liable with Eleuterio Bernardo Del Rosario, in order to ensure that Defendant Zerlyn Fonceca Del Rosario has a full and fair opportunity to participate in the litigation affecting her interests, the Court stays the proceedings and defers ruling on both Motions to set aside/vacate the default judgment until the bankruptcy stay is lifted.

Conclusion

             The Court stays the proceedings and defers ruling on the motions to set aside/vacate the default judgment until the bankruptcy stay is vacated. 

            Further, the Court sets a Status Conference Re Bankruptcy Action of Defendant Zerlyn Fonceca Del Rosario on August 14, 2024 at 8:30 a.m.  The parties shall file a Joint Status Report no later than 5 court days before the scheduled Status Conference. 

Plaintiff shall provide notice of the Court’s ruling and file a proof of service regarding the same.

DATED: March 4, 2024                                                         ___________________________

Michael E. Whitaker

                                                                                    Judge of the Superior Court