Judge: Olivia Rosales, Case: VC066039, Date: 2022-12-21 Tentative Ruling
Case Number: VC066039 Hearing Date: December 21, 2022 Dept: SEC
MORGA v. RODRIGUEZ
CASE NO.: VC066039
HEARING: 12/21/22
#5
TENTATIVE ORDER
I.
Defendant/Cross-Complainant SABRINA RODRIGUEZ’s
Motion for Clarification is DENIED. On the Court’s Own Authority, the
Court Reconsiders it’s Prior Order of October 31, 2022, and Amends the Order
nunc pro tunc as follows:
The proceeds from the sale of the real property should be
distributed as follows:
First, payment to Penny Mac Loan Services, LLC for its
lien on the house for the mortgage.
Second, the remaining sale proceeds are ordered
distributed evenly between Rodriguez and Morga.
The subsequent liens in the sum of $126,542.76 should be deducted from Morga’s
share of the remaining 50% sale proceeds.
II.
Plaintiff/Cross-Defendant THOMAS MORGA’s Motion
to Enforce Court Orders is DENIED.
Defendant to give notice.
Motion for Clarification
Defendant/Cross-Complainant SABRINA RODRIGUEZ (“Defendant”)
moves for an order “clarifying” this Court’s October 31, 2022 Order.
The Motion for Clarification is DENIED. The Court’s October
31, 2022 Order adequately explains the legal and factual basis for the Court’s
decision and is sufficient to allow for appellate review. There is no need to “clarify”
the Order.
However, the instant Motion for Clarification is actually a
request for reconsideration of the Court’s ruling, and not a Motion for
Clarification at all. “If a court believes one of its prior interim orders was
erroneous, it should be able to correct that error no matter how it came to
acquire that belief.” (Le Francois v. Goel (2005) 35 Cal.4th 1094,
1108.) Therefore, prompted by
Defendant’s Motion for Clarification, on its own authority, the Court
reconsiders it’s previous Order of October 31, 2022.
Under CCP §1008, the Court may not entertain a motion for
reconsideration absent a showing of new or different facts, law, or
circumstances. (CCP §1008.) “[F]acts of which the party seeking reconsideration
was aware at the time of the original ruling are not ‘new or different.’
[Citation Omitted].” (In re Marriage of Herr (2009) 174 Cal.App.4th
1463, 1468.) When an application for an order has been made to a judge, or to a
court…any party affected by the order may, within 10 days after service upon
the party of written notice of entry of the order…make application to the
same judge or court that made the order, to reconsider the matter and modify,
amend, or revoke the prior order….” (emphasis added.) (CCP §1008(a).)
Here, the Motion was timely filed on November 7, 2022—less
than 10 days from the issuance of the Court’s October 31, 2022 Order. Moreover,
Defendant has submitted “new or different” facts or law that were unavailable
or unknown at the time of the hearing on the distribution of the proceeds from
the sale of the Subject Property (which occurred on September 13, 2022). Attorney
Vogele declares that “[a]fter the September 13 hearing, escrow closed and a
final seller’s settlement statement was provided by Chicago Title to Mr. Morga
and Rodriguez. The total payoff amounts for Mr. Morga’s liens increased from
$106,432.35 to $126,543.76.” (Vogele Decl., ¶5, Ex. 2.) At the time the
Distribution Hearing occurred, neither the Court nor the parties had the final
settlement statement.
The Motion for Reconsideration is GRANTED. The Court’s Order
of October 31, 2022 is amended nunc pro tunc to state:
The proceeds from the sale of the
real property should be distributed as follows:
First, payment
to Penny Mac Loan Services, LLC for its lien on the house for the mortgage.
Second, the
remaining sale proceeds are ordered distributed evenly between Rodriguez and
Morga.
The subsequent liens in the sum of $126,542.76 should be deducted from Morga’s
share of the remaining 50% sale proceeds.
Motion for Enforce Court Order
Plaintiff/Cross-Defendant THOMAS MORGA’s (“Plaintiff”) (pro
per) Motion to Enforce Court Orders is DENIED. By way of this Motion, Plaintiff
argues that Counsel for Defendant (Tom Vogele) is in contempt of Court for
failure to create a separate escrow account and for failure to execute this
Court’s October 31, 2022 Order. Plaintiff moves for an order of $20,000.00 in
sanctions paid to both Thomas Morga and Sabrina Rodriguez, and to enforce the
October 31, 2022 Order.
The “[d]isobedience of any lawful judgment, order, or
process of the court” constitutes contempt. (CCP §1209(a)(5).) When contempt is
committed outside the presence of the Court, a proceeding is commenced by the
filing of an affidavit charging the facts constituting contempt. (CCP §1211.)
The factual predicates to a finding of contempt are: (1) the rendition of a
valid order; (2) actual knowledge of the order; (3) ability to comply; and (4)
willful disobedience. (Conn. v. Sup. Ct. (1987) 196 Cal.App.3d 774,
784.)
The punishment for contempt is up to five days’ imprisonment
and/or a fine of up to $1,000 for each contempt. (See CCP §1218(a).) In
addition, a person who is subject to a court order as party to the action who
is adjudged guilty of contempt for violating that court order may be ordered to
pay the party initiating the contempt proceeding the reasonable attorney’s fees
and costs incurred by that party in connection with the contempt proceeding.
(Id.) Civil contempt proceedings are quasi-criminal in nature because of the
penalties which may be imposed. (In re Kreitman (1995) 40 Cal.App.4th
750, 754.) Thus, “guilt must be established beyond a reasonable doubt.” (Ross
v. Superior Court of Sacramento County (1977) 19 Cal.3d 899, 913.)
The Motion is DENIED on procedural grounds. No charging
affidavit/declaration was filed This requirement is mandatory— compliance is
not optional.
Defendants
Evidentiary Objections are SUSTAINED.