Case Number: BC537474    Hearing Date: October 20, 2014    Dept: 40

UNTIY AMERICA FUND, et.al. v. DALIS ACEITUNO
MOTION TO VACATE DISMISSAL

Case No: BC537474
Date: October 20, 2014
Tentative Ruling: The motion to vacate the dismissal is DENIED.

A motion to vacate pursuant to Code of Civil Procedure section 663 allows an aggrieved party to request that the court vacate the judgment and enter a different judgment. It empowers the court to correct its judgment for inconsistencies between the statement of decision and the facts or between the judgment and the jury’s special verdict. In contrast to a motion for new trial, this motion does not allow the court to reexamine factual issues. CCP section 663 provides only two grounds for a motion to vacate a judgment: (1) “Incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts . . .” (CCP §663(1)) and (2) “A judgment or decree not consistent with or not supported by the special verdict.” (CCP §663(2).) Plaintiffs’ motion seeks an order vacating dismissal on the grounds specified in Section 663(1).

In this case, a default was entered against Defendant Dalis Aceituno on May 20, 2014. Plaintiffs’ submitted a default judgment package to the Court. On June 10, 2014, the Court determined that this is a claim involving real property and scheduled a default prove-up hearing for June 26, 2014. Plaintiff Maha Visconti appeared in propria persona and Plaintiff Unity America Fund appeared through counsel. The Court heard evidence and explained that the evidence was insufficient. The hearing was under two hours. At the parties’ request, the Court set a further default prove-up hearing for July 14, 2014. Plaintiff Maha Visconti appeared; United America Fund did not appear. The hearing was under two hours. Plaintiff Maha Visconti submitted to the Court a Declaration of Maha Visconti with documents attached. The attachments consist of an unauthenticated preliminary title report for APN 4350-006-018 (1140 Calle Vista Drive, Beverly Hills, CA) a photocopy of a recorded abstract of judgment in SC096075, and a photocopy of a September 20, 2011 minute order in SC096075. The Court took the matter under submission to review the documentary evidence attached to the Declaration and entered its order denying the default judgment and dismissing the case on July 15, 2014. Thereafter, no statement of decision was requested.

The complaint in this case is titled quiet title and cancellation of deed, damages for fraud and abuse of process. The complaint seeks to cancel and set aside the recorded judgments in O8C06255 and attendant Instrument 2010-685471 and the recorded default judgment in SC096075. The Court considered all of the testimony and all of the evidence presented. The evidence to support an award for quiet title, cancellation of deed, damages for fraud and abuse of process was lacking.

In invoking Section 663(1), the moving parties contend the Court “abused its discretion in failing to issue a reasonably detailed statement of its decision, so that the moving parties can ascertain and understand the reasoning of the court in making its decision. Plaintiffs were served with the order denying default judgment and dismissing the action, but never made a request for a statement of decision. Instead, Plaintiffs argue that over the course of the two evidentiary hearings, they “submitted all of the evidence which the court required them to submit” and on this basis “there should be no grounds for ultimate denial of relief and then dismissal of the action.” The Visconti declaration indicates Plaintiff believes she did everything the Court asked of her (Visconti Decl. p. 5:3-4) and on that basis she requests clarification in the form of a detailed and informative statement of decision. CCP section 632 governs requests for statements of decision after trial. CCP section 632 applies only to trials of questions of fact, and a request for statement of decision must be made within the time frame set forth in CCO section 632, within ten days after the Court issues its tentative decision. None was requested here and therefore the Court did not abuse its discretion in failing to “issue a reasonably detailed statement of its decision.”

Plaintiff’s complaint seeks to set aside and expunge the recorded judgment of Judge Goodman on September 20, 2011 in SC096075 in which Aceituno prevailed and was awarded a personal injury judgment against Maha Visconti in the amount of $20, 235.00. This is based upon Plaintiff’s declaration and testimony that she has found out through a private investigator that Fireman’s Fund had actually paid Aceituno for her claimed personal injuries and that Aceituno should not have been awarded a default judgment against Maha Visconti because she secretly received money. The complaint alleges that she first litigated the personal injury claim against Maha Visconti in 2006 and lost her case, and that she then filed the second lawsuit SC096075 for the same injuries and prevailed. The preliminary title report shows the abstract of judgment in SC096075 was recorded January 19, 2012 providing notice of the entry of a default judgment by Aceituno against Maha Visconti in the amount of $20, 235. It also shows that an abstract of judgment was recorded in the amount of $4,140.53 against “John Visconti et. Al.” on May 19, 2010 under Instrument Number 2010-685471. No evidence was presented regarding the alleged 2006 case. Nor is this the Court that would decide whether SC096075 was res judicata. No underlying evidence was presented to show that Fireman’s Fund paid Aceituno or what effect that evidence would have had on Judge Goodman’s decision; no evidence was presented of the date when Maha Visconti found out that Fireman’s Fund had paid her; no evidence was presented as to what evidence was the basis of Judge Goodman’s decision; no evidence was presented regarding whether Maha Visconti had this information in time to respond to the complaint in SC096075 rather than allow a default to be taken; no evidence was presented of whether Aceituno committed fraud; no evidence was presented of which acts constituted abuse of process. Additional issues not resolved by the Plaintiffs were why this Court should overturn the judgment of another judge; no analysis was provided regarding how, even if the recorded abstracts were cancelled by this Court, the Court can quiet title to the property APN 4350-006-018 (1140 Calle Vista Drive, Beverly Hills, CA) when there appear to be numerous recorded judgments and tax liens that may affect title. These questions, among other things, are unexplained by Plaintiffs’ evidence. Plaintiffs did not prove their case even after the Court granted a continuance to Plaintiffs to have a second hearing and provide further evidence to the Court.

For the foregoing reasons, the Court finds that Plaintiffs’ motion to vacate dismissal is not well-taken and is denied.