Lazo v. Vidaurreta CA4/3 ( 2020 )

Filed 12/23/20 Lazo v. Vidaurreta CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
FREXINY LAZO,
Plaintiff and Appellant, G058643
v. (Super. Ct. No. 30-2017-00924373)
SAMUEL VIDAURRETA et al., OPINION
Defendants and Respondents.
Appeal from a judgment of the Superior Court of Orange County, Sheila
Fell, Judge. Dismissed.
Larry Rothman & Associates and Larry Rothman for Plaintiff and
Appellant.
Law Offices of Olaf J. Muller and Olaf J. Muller for Defendant and
Respondent Edwin M. Ashley.
INTRODUCTION
Frexiny Lazo appealed from a default judgment on the grounds that the trial
court did not award her enough money. She thought she should get $5.6 million. The
trial court awarded her slightly over $400,000, the amount of the damages claimed in her
complaint.
After oral argument, but before we issued our opinion, respondent Edwin
M. Ashley moved in the trial court to vacate the default judgment against him. The trial
court granted the motion and vacated the judgment. This action in the trial court renders
the appeal moot, and we now dismiss it.
FACTS
Lazo sued Samuel Vidauretta, Prospice Medical Center, LLC, Prospice
Medical Group Corporation, and Ashley for breach of contract, accounting, and fraud.
She alleged that Vidauretta persuaded her to give him $400,000 in exchange for the right
to collect “physician receivables within the State of California.”1 The receivables did not
materialize, and Vidauretta refused to provide an accounting. She alleged that the
defendants breached the investment contract by refusing to provide an accounting or
detailed records and by refusing to return her investment.
None of the defendants answered, and Lazo requested the entry of their
defaults on March 5, 2019. But instead of the $400,000 amount set out in her complaint,
she asked for $2.9 million in “demand of complaint” damages, $1 million in special
damages, $1.6 million in interest, $2,900 in costs, and $38,000 in attorney fees, for a total
of $5.6 million. She asked for the same amounts against all four defendants. She filed a
memorandum of costs (summary) for $900.00 on July 15, 2019. The court entered
judgment on September 17, 2019, for $400,000 plus $785.00 in costs.
1
Lazo formed a limited liability company, Universal Healthcare Consulting, LLC, to collect the
receivables.
2
Lazo appealed, maintaining that in addition to her $400,000 investment, she
is entitled to lost profits in the amount of $2.5 million, plus interest, costs, and legal fees.
We heard oral argument on the appeal in November 2020.
Ashley moved in the trial court to vacate the judgment against him under
Code of Civil Procedure section 473, subdivision (d). As he pointed out, the judgment
lacked some crucial attachments, including one listing the names of the defendants
against whom the judgment was entered. The court agreed that the judgment was void on
its face. It granted the motion to vacate the judgment on December 16, 2020. Ashley
then moved in this court to dismiss the appeal.
DISCUSSION
Although normally proceedings in the trial court are stayed during an
appeal, the court retains the power to vacate a judgment that is void on its face. “The
setting aside of a void order by the trial court, while an appeal is pending, renders the
appeal moot and subject to dismissal.” (Andrisani v. Saugus Colony Limited (1992) 8
Cal.App.4th 517, 523.) “Since those orders have been vacated, appellant is no longer
aggrieved by these orders.” (Id. at p. 524; see also Svistunoff v. Svistunoff (1952) 108
Cal.App.2d 638, 641.)
The judgment appealed from in this case has been vacated. The appeal is
now moot.
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DISPOSITION
The appeal is dismissed. Each party to bear their own costs.
BEDSWORTH, ACTING P. J.
WE CONCUR:
IKOLA, J.
THOMPSON, J.
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